ON PRIVACY: LIBERTY IN THE DIGITAL REVOLUTION

Christina M. Gagnier
*


Cite as 11 J. HIGH TECH. L. 229 (2011)

In the dorm room of some college freshman Political
Science major at Any College U.S.A is a copy of John Stuart Mill’s
On Liberty shoved under the bed.
1
Mill’s On Liberty, studied for
its discussion of liberty at large in the American polis, makes the
fine distinction that our own privacy law in the United States
currently struggles to recognize:

“But there is a sphere of action in which society, as
distinguished from the individual, has, if any, only an
indirect interest; comprehending all that portion of a
person’s life and conduct which affects only himself, or if it
also affects others, only with their free, voluntary, and
undeceived consent and participation.”
2


Our own jurisprudence has recognized these “spheres,” finding
there to be a privacy interest in matters relating to women’s
health issues, familial matters, and other specifically identified

*
Ms. Gagnier is a Partner at Gagnier Margossian LLP and CEO of
REALPOLITECH. Previously, she served as the Chief Information Officer of
Mobilize.org. Currently, Ms. Gagnier blogs in the Technology Section of The
Huffington Post, is a web columnist for California Lawyer, and contributed to
CBS News’ What’s Trending. Ms. Gagnier dedicates this article to Professor
Sherilyn Sellgren, her undergraduate thesis advisor and the person who first
inspired her interest in the field of online media and cyberlaw today. She
would also like to thank Professor Susan Freiwald for her comments on early
drafts of the article.
1. See JOHN STUART MILL, ON LIBERTY (David Bromwich & George Kateb eds.,
Yale Univ. Press 2003) (1859) [hereinafter MILL] (focusing on the nature and
limits of individuals in society).
2. MILL, supra note 1, at 82-83.

Copyright © 2011 Journal of High Technology Law and Christina M. Gagnier.
All Rights Reserved. ISSN 1536-7983.


230 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
areas.
3
Outside of these particular contexts, these spheres,
especially in Fourth Amendment jurisprudence, are often based
upon spatial distinctions.
4


Where the “right to privacy” becomes less clear is when a
person’s intimate, seemingly obscure actions, in some way cross
into the public domain.
5
Out of the house and into the world, the
right to privacy seems to dissolve, especially for those whose
careers demand they be in the public view.
6
In the visceral
world, it is easier to make these distinctions as they are both
temporal and spatial.
7
When we take these debates into the
virtual world, the boundaries become much less clear.
8
“Opt in”
and “opt out” schemes are not new or just online.
9
Privacy rules,
especially the tort of Publicity Given to Private Life in the
Restatement Second of Torts § 652D, make it clear that once you
enter into the public domain it is up to the public to decide what
is of “legitimate concern to the public.”
10



3. See Griswold v. Conn., 381 U.S. 479, 499 (1965) (holding marital privacy
is a fundamental right prescribed by the Ninth Amendment); Roe v. Wade, 410
U.S. 113, 153 (1973) (concluding that the right of privacy includes mother’s
right to terminate or continue pregnancy).
4. See Kyllo v. United States, 533 U.S. 27, 27-28 (2001) (deciding
surveillance is a search under the Fourth Amendment), Oliver v. United States,
466 U.S. 170, 184 (1984) (holding open fields doctrine in deciding discovery
or seizure of marijuana on private property).
5. See Samuel Warren & Earl Brandeis, The Right to Privacy, 4 HARV. L. REV.
193, 214-18 (1890) (describing the limitations of the right to privacy).
6. See Chandler v. Miller, 520 U.S. 305, 321 (1997) (exposing reduced
privacy expectations of candidates for public office); Tiffany D. Lipscomb, Can
Congress Squeeze the “Juice” Out of Professional Sports? The Constitutionality of
Congressional Intervention into Professional Sports' Steroid Controversy, 69
OHIO ST. L.J. 303, 336 (2008) (cautioning against diminishing privacy rights for
celebrities and musicians).
7. See RESTATEMENT (SECOND) OF TORTS § 652C (1977) (portraying the
interest protected by the right of privacy as the “name or likeness” of another).
8. See Tigran Palyan, Common Law Privacy in a Not So Common World:
Prospects for the Tort of Intrusion Upon Seclusion in Virtual Worlds, 38 SW. U. L.
REV. 167, 179 (2008) (excerpting peculiarities of privacy invasion in the
virtual world).
9. See Pam Dixon and Robert Gellman, World Privacy Forum’s Top Ten Opt
Outs, WORLD PRIVACY FORUM, archived at
http://www.webcitation.org/5wA26IP1v (enumerating top ten “opt outs”
including the National Do Not Call Registry and CAN SPAM e-mail initiative).
10. See RESTATEMENT (SECOND) OF TORTS § 652D (1977) (prescribing publicity
given to private life).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 231
Even Mill qualified his statement about the spheres of
privacy:

“When I say only himself, I mean directly, and in the first
instance: for whatever affects himself, may affect others
through himself, and the objection which may be
grounded on this contingency, will receive consideration
in the sequel. This, then, is the appropriate region of
human liberty.”
11


Mill lived in simpler times, as did we, less than fifteen
years ago.
12
We had a better idea of when we were “opting in” or
“opting out” of our privacy and to whom we were exposing
ourselves.
13
Our demands for privacy were based on the
tangible, and much of our jurisprudence has stopped at the
doorstep of the digital revolution, refusing to open the door and
preemptively deal with the proliferation of exposure that can
result from the mass dissemination of technology.
14
So what
happens...

When we move out of the age of newsprint,
geographically-restricted, and media outlet-driven
information dispersion to the age of the “Celebreality,”
where with the click of a button, average citizens,
celebrities, and public figures alike thrust themselves and
others into a worldwide public domain that is read-write,
user-created, and perpetually-fed through cowboy
journalistic tactics, or perhaps the field of citizen
journalists?
15


11. MILL, supra note 1, at 82-83.
12. See JOHN STUART MILL, AUTOBIOGRAPHY 2 (1874) (detailing his own birth in
London in 1806).
13. See, e.g., Lyn Giguere, Google Alarm: Exposing Internet Privacy Issues One
Page at a Time, TOPWIRENEWS, Aug. 11, 2010, archived at
http://www.webcitation.org/5wA7LI581 (stating that most web surfers are
unaware of internet privacy issues and that Google tracks their activity
online).
14. See Rita R. Woltz, The Expanding Government Speech Doctrine in United
States Jurisprudence and its Implications for Internet Privacy and Private
Speech, 5 F. ON PUB. POL’Y, no.2, 2009 at 1, 1 (observing the “dearth of case law”
involving the Internet).
15. See, e.g., Rachel Giese, Star-Spangled Blogger: Perez Hilton Basks in

232 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
When members of Generation X, the Millennial
Generation, and even the youngest generational cohort, go
public with their private lives, attempt to create online
communities and fail to realize that in any small online
“town,” your business is not just the business of everyone
in that community but also that of the entire world?
16


...when the right to privacy starts being trumped by the
emergence of a new “right,” the right not just to “know,” but the
“right to know everything?”
17


We, as a society, are faced with the incompatibility of our
demands.
18
Within the virtual world, we open ourselves to the
public in platforms like Facebook but we demand privacy for
some of the same personal information when we participate in
the online marketplace.
19
This is even further complicated by the
anger we express when these same social network platforms
change their terms of use and their “rules of the game” to deal
with user privacy.
20
In the battle to coalesce the tension between

Celebrity’s Warm Glow, CBC.CA, June 22, 2006, archived at
http://www.webcitation.org/5wE14Wv7l (contending that the ability of
citizen journalists’ to quickly spread news widely has changed how the media
reports celebrity gossip); see Imani Perry, Do You Really Love New York?:
Exposing the Troubling Relationship Between Popular Racial Imagery and Social
Policy in the 21st Century, 10 BERKELEY J. AFR.-AM. L. & POL’Y, 92, 105 (2008)
(explaining that “[c]elebreality is a term applied to reality shows which [sic]
feature celebrities”).
16. See, e.g., David Hector Montes, Living Our Lives Online: The Privacy
Implications of Online Social Networking, 5 I/S: J. L. & POL’Y FOR INFO. SOC’Y 507,
513 (2010) (positing that cyberbullying induced suicides are one possible
result of children posting personal information on public websites).
17. See Lawrence M. Friedman, The One-Way Mirror: Law, Privacy, and the
Media, 82 WASH. U. L.Q. 319, 330 (2004) (examining the factors underlying the
public’s claim of a “right to know everything about celebrities”).
18. See, e.g., Cristina Duarte, The Family and Medical Leave Act of 1993:
Paying the Price for an Imperfect Solution, 32 U. LOUISVILLE J. FAM. L. 833, 840-41
(1994) (questioning the use of federal legislation to ease societal tensions in
light of the incompatible demands of work and family responsibility).
19. Compare Montes, supra note 16, at 508 (implying a public interest in
divulging personal information on social networking sites), with Jane E.
Kirtley, Privacy Protection, Safety, and Security, 1027 P.L.I/PAT. 15, 71-72
(2010) (documenting Amazon.com users’ demand of protection against North
Carolina Department of Revenue).
20. See Mark Milian, Facebook Backtracks on Terms of Use After Protests, LOS
ANGELES TIMES, Feb. 19, 2009, archived at
http://www.webcitation.org/5wEBxom51 (describing Facebook users’

2011] JOURNAL OF HIGH TECHNOLOGY LAW 233
the virtual and the visceral world, we face the distinct reality that
what we do online is eroding the concept of the “reasonable
expectation of privacy” both on and offline.
21


A balance must be struck. Alan Westin writes that, “each
individual must, within the larger context of his culture, status,
and his personal situation, make a continuous adjustment
between his needs for solitude and companionship; for intimacy
and general social intercourse; for anonymity and responsible
participation in society; for reserve and disclosure.”
22
Balancing
our demands for transparency in some spheres with our demand
for privacy in others, essentially where does the “right to know”
begin and end? Two questions will drive this analysis:

1) Whose privacy are we willing easily to surrender, whose
privacy should we be willing to surrender, and what
matter is “of legitimate concern”
23
to the public?; and

2) Have we compromised our right to privacy with online
activity, narrowing the spheres in which there is a
“reasonable expectation of privacy?”
24


A third looming question is whether people like Facebook
founder, Mark Zuckerberg, are correct when they assert that the
social norm is no longer privacy.
25


Part I, Celebreality, discusses how the public’s obsession
with public figures and the creation of their own “celebrity” is
working to destroy privacy protections afforded under already
weak torts such as the tort of Publicity Given to Private Life. Part

outrage after terms of use changes).
21. See Montes, supra note 16, at 508-09 (concluding that increased online
participation results in decreased privacy in various aspects of society).
22. ALAN F. WESTIN, PRIVACY AND FREEDOM 42 (1967).
23. RESTATEMENT (SECOND) OF TORTS § 652D (1977).
24. See Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring) (forming the standard for reasonable expectation of privacy).
25. See Eliot Van Buskirk, Report: Facebook CEO Mark Zuckerberg Doesn’t
Believe in Privacy, EPICENTER, Apr. 28, 2010, archived at
http://www.webcitation.org/5wEEqwldq (recounting Facebook CEO Mark
Zuckerberg’s admissions about privacy online).

234 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
II, R.I.P. to the REP, explores how the utilization of social
networking sites like Facebook, under the guise of corporate-
created legal regimes for privacy, is working to erode the
reasonable expectation of privacy for individuals on and offline.
Part III, A Naked Truth, argues the need for revival of tort
protection for individual privacy and the need for Congressional
action to preserve the privacy of individual users online.
Concluding, No Such Thing as a Free Lunch, reflects on how the
societal demand for the “right to know” will only be won at great
cost to individual privacy rights.

I. Part I: Celebreality

With the click of a button, one enters into the world of
Celebreality.
26
Not the world fashioned by the cable network
VH1, which coined the term to represent its programming that
purports to track the life of former and aspiring A-List celebrities
(and B-List, C-List, D-List, or “No-List” celebrities), but the real
world where every movement, clothing choice, cigarette lighting,
car exit, restaurant entrance and grocery shopping trip is
accounted for.
27
This is the world of TheSuperficial.com.
28


“OJ Simpson arrested.”
29
The article on this particular
TheSuperficial.com entry displayed the picture taken upon his

26. See Joyce Millman, Celebreality: The 'Stars' Are Elbowing Their Way In,
N.Y. TIMES, Jan. 5, 2003, §2, at 1, archived at
http://www.webcitation.org/5x59BBfQy (heralding a new form of television
drama where celebrities act like nonfamous people).
27. See Brian Stelter, With 'Celebreality,' VH1 Attracts Ratings and Chagrin,
N.Y. TIMES, Aug 30, 2009, §B, at 5, archived at
http://www.webcitation.org/5x59UStEy (expanding on the genre VH1 created
and the criticism the programming draws for the network).
28. See Celebrity Gossip – The Superficial – Because You’re Ugly,
THESUPERFICIAL.COM (displaying the home page). TheSuperficial.com is an
online celebrity gossip website. See Thesuperficial.com, QUARKBASE.COM,
archived at http://www.webcitation.org/5x2WszKlW (collecting various
information and statistics about TheSuperficial.com). According to statistics
from QuantCast, TheSuperficial.com receives over 669,000 visitors per month
and boasts to users the tagline “Because You’re Ugly.” TheSuperficial.com,
QUANTCAST.COM, Jan. 25, 2011, archived at
http://www.webcitation.org/5w12FnOis.
29. O.J. Simpson arrested, THESUPERFICIAL.COM, Sep. 17, 2007, archived at
http://www.webcitation.org/5w3M7s0Bq.

2011] JOURNAL OF HIGH TECHNOLOGY LAW 235
arrest, and explained that Simpson “was charged with two counts
of robbery with a deadly weapon, two counts of assault with a
deadly weapon, and conspiracy to commit a crime and burglary
with a firearm, and the fact that he was currently being held
without bail.”
30

“Pamela Anderson ages 50 years before your eyes.”
31

Upon appearances in the photograph accompanying this
TheSuperficial.com entry, Pamela Anderson is picking up poster
board at a local drugstore, likely for one of her two children, but
having a particularly unbecoming hair and makeup day.
32


One of these articles appeared in major news sources,
concerning the arrest of someone for violent crimes that has
consistently been a public figure and who had previously been on
trial for murder.
33
The other is someone whose career puts that
person in the public spotlight, having somewhat of a haggardly
day, picking up some art supplies for one of her children.
34
Is this
second scenario “of legitimate concern to the public?”
35


The first example obviously rises to the level of public
concern, without even addressing the legal arguments; it is a
crime that violates our laws as well as our societal notions of
public safety and welfare.
36
The second example, even though
mundane, would still be considered acceptable, since the legal
fiction of the “reasonable person” would likely not find it
“offensive.”
37
Has Ms. Anderson put herself in the public view?

30. See O.J. Simpson Arrested, supra note 29.
31. Pamela Anderson Ages Fifty Years Before Your Eyes, THESUPERFICIAL.COM,
Sep. 20, 2007, archived at http://www.webcitation.org/5w3NQ56oo
[hereinafter Pamela Anderson].
32. See Pamela Anderson, supra note 31(displaying a picture of Pamela
Anderson).
33. See O. J. Simpson, N.Y. TIMES, Dec. 3, 2008, archived at
http://www.webcitation.org/5w3OxbGzg (describing O. J. Simpson’s
professional and criminal history).
34. See Pamela Anderson, supra note 31 (displaying a picture of Pamela
Anderson without makeup, leaving a store, and holding a posterboard).
35. RESTATEMENT (SECOND) OF TORTS, § 652D (1977).
36. See RESTATEMENT (SECOND) OF TORTS, § 652D cmt. d (1977) (highlighting
that no liability exists where one discloses already public information such as
court pleadings); O.J. Simpson Arrested, supra note 29 (describing why O. J.
Simpson was arrested in 2007).
37. See RESTATEMENT (SECOND) OF TORTS, § 652D cmt. c (1977) (giving an

236 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
Yes.
38
But because you put yourself into the purview of the
public in a professional capacity, are you subject to the tracking
of your every move?
39
This is the question that remains
unanswered in the world of “celebrity,” a status that society has
more willingly given to those who might have been considered
merely private citizens in the past.
40


Pushing the envelope much further, a third example is the
“crotch shot” phenomenon, where members of the paparazzi wait
for a female celebrity to exit a car, see if her legs are spread wide
enough apart to snap a shot of the female celebrity’s vaginal area,
and take a photograph that exposes that area to the rest of the
world.
41
A woman’s private parts are called that for a reason:
they are meant to be private.
42
These pictures display content
that would still be considered to be highly offensive to the
reasonable person.
43
Nonetheless, are these pictures of
“legitimate concern to the public?”
44
Is a celebrity, who wears
revealing clothing to a club and decides to “go commando,”
subjecting herself to the public purview as cameras specifically
wait for that particular money shot?
45



example of a reasonable person not taking offense at a newspaper report
about returning from a trip).
38. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1977) (explaining
how an actor places himself in public view as a voluntary public figure).
39. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. h (1977) (illustrating
that some public figures’ private facts are protected).
40. See id. (stressing the line must be drawn between legitimate public
interest and private facts).
41. See We Love the Crotch Shot, PEREZHILTON.COM, Aug. 27, 2007, archived at
http://www.webcitation.org/5w3VewkXT [hereinafter We Love the Crotch
Shot] (displaying an example of a “crotch shot”).
42. See MOHAMMAD DIAB, LEXICON OF ORTHOPAEDIC ETYMOLOGY 278 (1999)
(showing the etymology of private parts by way of metonymy from pubis).
43. See We Love the Crotch Shot, supra note 41 (displaying a “crotch shot” of
Danielle Harris).
44. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. d. (1977) (commenting
on how the common law and the Federal Constitution require that subject
matter of the publicity must be a legitimate public concern and therefore, not
an invasion of privacy).
45. See Going Commando!, THE BS HISTORIAN, Oct. 3, 2007, archived at
http://www.webcitation.org/5w3XuvDqX (explaining the etymology of “going
commando”).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 237
This discussion of the “reasonable person” and “the
legitimate concern of the public” has a point, relating to the
privacy redress one can gain from torts such as the Publicity
Given to Private Life, found in the Restatement (Second) of Torts §
652D, which states:

One who gives publicity to a matter concerning the
private life of another is subject to liability to the
other for invasion of his privacy, if the matter
publicized is of the kind that (a) would be highly
offensive to the reasonable person, and (b) is not of
legitimate concern to the public.
46


In theory, this tort shelters people from the revelation of
facts considered highly offensive and of no concern to the public,
but this protection has been continually eroded by the courts
over the years, and by the shifting of social mores regarding what
is offensive and what should be in the public interest.
47
In fact,
some scholars feel that the Supreme Court has rendered the tort
dead, with no plans for resuscitation in sight.
48


The concern over the public’s growing interest in the
“private” was demonstrated by Warren and Brandeis at the end
of their Harvard Law Review piece over one hundred and
seventeen years ago when they posed a seminal question: “Shall
the courts thus close the front door to constituted authority, and
open wide the back door to idle and prurient curiosity?”
49

Arguably, the public’s prurient curiosities are not new. We have
always tried to eavesdrop on conversations that we as a society
were never meant to be a part of, discussed that one neighbor’s
business amongst the rest of the self-appointed “Neighborhood
Watch,” and exhibited the desire to know about the lives of those

46. RESTATEMENT (SECOND) OF TORTS § 652D (1977).
47. See Jonathan B. Mintz, The Remains of Privacy’s Disclosure Tort: An
Exploration of the Public Domain, 55 MD. L. REV. 425, 448 (1996) (noting that in
several cases, the Supreme Court has narrowed “the tort’s theoretical scope of
protection”).
48. See Mintz, supra note 47, at 426 (summarizing academia’s position that
the tort of public disclosure of private facts is dead).
49. Warren & Brandeis, supra note 5, at 220.

238 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
whose grass seems greener on the other side of the fence.
50
With
the advent of advanced technologies and digital information
systems, coupled with the proliferation of not only access to the
Internet, but America’s growing familiarity with the use of its
applications, it has become easier to satisfy these prurient
interests.
51


It is the appropriate recourse that private actors and
public actors in private capacities should be of concern to the
general public, more specifically, the rising of the threshold to
gain protection under the tort of Publicity Given to Private Life.
52

The primary debate over the tort has been in the context of the
First Amendment, pitting the individual’s privacy right in the
exposition of facts about their lives versus the right of the press
to engage in its newsgathering practices.
53
Erwin Chemerinsky
discusses the importance of the newsgathering function of the
media, who argues that for the media to provide a “checking
value on the government,” it must have the ability to inform
“people about matters that are important to their lives.”
54
While
the press does feed the public “right to know” in a democratic
society, Chemerinsky’s arguments are premised on subject-
matter, relating to government practices, consumer protection, as
well as social and public policy issues.
55
What would
Chemerinsky have us do with “crap?”

The absolutism promulgated in this viewpoint seems too
impractical when it comes to newsgathering that is solely for

50. See Warren & Brandeis, supra note 5, at 195 (noting the modern
technology and business methods aid the invasion of private and domestic
life).
51. See Byron Dubow, Confessions of ‘Facebook Stalkers’, USA TODAY, Mar. 8,
2007, archived at http://www.webcitation.org/5w41CieUT (describing casual
‘stalking’ on Facebook as typical).
52. See RESTATEMENT (SECOND) OF TORTS § 652D (1977) (defining right of
publicity under tort).
53. See RESTATEMENT (SECOND) OF Torts § 652D (1977) (elucidating the
relationship between right of publicity and the Constitution).
54. Erwin Chemerinsky, Protect the Press: A First Amendment Standard for
Safeguarding Aggressive Newsgathering, 33 U. RICH L. REV. 1143, 1159-60
(2000).
55. See Chemerinsky, supra note 54, at 1158-64 (articulating protecting
newsgathering based on a freedom of speech standard).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 239
entertainment purposes, or to slide further down the scale, to
satisfy the public’s perversion. This adherence to absolutism
must also be questioned as newsgathering and information
sharing has shifted from the traditional print media model to
individual bloggers and citizen journalists.
56
Where Chemerinsky
does part ways with an absolutist stance is his endorsement of
the California Anti-Paparazzi Act, which he considers to be
constitutional because it deals with the sphere of the home, an
intimate sphere and one that should receive privacy protection.
57

Still, Chemerinsky’s absolutism begins again once you are outside
on your doorstep if you are a celebrity.
58


This discussion is impacted by the exponential increase in
exposure that one experiences in today’s information age.
59
Your
business is not just published in a finite number of print
publications; it is available permanently online for the world to
see.
60
Consider the average readership of print media when this
privacy debate first emerged versus the average readership of
these same news outlets online.
61
You go from the assumption of

56. See Amy Harmon, A NATION AT WAR: Weblogs; Facts Are In, Spin Is Out,
N.Y. TIMES, Mar. 25, 2003, §B, at 14, archived at
http://www.webcitation.org/5x5CMVQKp (portraying an increasing shift
where readers look to blogs over traditional media outlets for news and
information).
57. See California Privacy Protection Act, Cal. Civ. Code §1708.8 (West 2004)
(setting forth refined elements to California’s invasion of privacy laws). The
Act imposes a heightened penalty scheme when a person trespasses in order
to “physically invade the privacy of the plaintiff with the intent to capture any
type of visual image, sound recording, or other physical impression of the
plaintiff engaging in a personal or familial activity and the physical invasion
occurs in a manner that is offensive to a reasonable person.” Id.; see also
Chemerinsky, supra note 54, at 1163-64 (advocating the constitutionality of
the California Privacy Protection Act).
58. See Chemerinsky, supra note 54, at 1163-64 (emphasizing that privacy
protection is for the home).
59. See Kate Murphy, Web Photos That Reveal Secrets, Like Where You Live,
N.Y. TIMES, Aug. 11, 2010, §B, at 6, archived at
http://www.webcitation.org/5x5CvSU2S (demonstrating how technology,
such as geotagging, can expose where picture takers are at any time).
60. See Allison Hope Weiner, The Web Site Celebrities Fear, N.Y. TIMES, June
25, 2007, §C, at 1, archived at http://www.webcitation.org/5x5DAoIRi
(revealing TMZ.com’s impact on publishing celebrity information online).
61. See Public More Critical of Press, But Goodwill Persists, PEW RESEARCH
CENTER FOR THE PEOPLE AND THE PRESS, June 26, 2005, archived at
http://www.webcitation.org/5wMJQD3uL (summarizing media outlet
statistics for online and offline publications).

240 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
risk that several million people will be exposed to your business
to a Panopticonal existence, where instead of having some sense
of control over who has access to you that is of essence to your
privacy, you lose complete control even of the scope of the public
“domain” to which you are exposing yourself.
62


A discussion of whose privacy we are willing to surrender
and in what ways, couched in the current digital context, applying
our current tort doctrine, but accounting for the change in
societal attitudes, is necessary at this juncture.
63
Rodney Smolla
articulates the need for this analysis writing that, “our future
laws and public policies on these issues inevitably will be
influenced by broader cultural movements regarding privacy.”
64


A. The Who

The status of the person involved in the particular
behavior that the “media” seeks to report can change the
newsworthiness analysis.
65
Traditionally, public figures were
considered to be public officials, elected representatives,
appointed officers, movie stars, or other self-identified leaders.
66

Today, the idea of who is a public official has expanded to include
a broad range of actors.
67
The need to know more about a wider
variety of people has been accompanied by a growing interest in
gaining more details about people who were traditionally public

62. See 4 JEREMY BENTHAM, Panopticon, or, The Inspection-House, in THE
WORKS OF JEREMY BENTHAM 40-41 (John Bowring ed., Russell & Russell Inc.
1962) (setting forth the ideal prison layout in which guards can always
observe prisoners).
63. See Rodney A. Smolla, Privacy and the First Amendment Right to Gather
News, 67 GEO. WASH. L. REV. 1097, 1118 (1999) (questioning public benefit
derived from tort of intrusion).
64. Smolla, supra note 63, at 1097.
65. See Smolla, supra note 63, at 1134 (elucidating difficulties in
differentiating between “private” and “newsworthy” facts).
66. See Samantha Barbas, The Death of the Public Disclosure Tort: A
Historical Perspective, 22 YALE J.L. & HUMAN. 171, 195-96 (2010) (limiting
definition of public figures in the nineteenth century to politicians, inventors,
and other traditional public men).
67. See BLACK’S LAW DICTIONARY 570 (2d ed. 2001) (defining public figure as
a “person who has achieved fame or notoriety or who has voluntarily become
involved in a public controversy”).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 241
figures.
68
Public officials and celebrities are no longer distinct;
both of these categorizations have become “mega-celebrities,” all-
purpose public figures.
69
This gets further complicated when
members of the general public, who were once considered
private citizens, which was a factor in the analysis under Section
652D, create their own “celebreality.”
70
Reality shows like MTV’s
phenomenon Jersey Shore catapult people into the limelight who
ten years ago would not have been considered to share celebrity
status.
71


Newsworthiness analysis hinders celebrities in their
ability to wear “their” masks.
72
Even in public, private citizens
expect some sense of privacy in the things that they do.
73
We are
told as children that it is not polite to stare at someone for a
reason: it invades someone else’s personal space.
74
Unlike the
“private” citizen’s ability to mask themselves in the anonymity of
the masses, celebrities are treated as if they are continually at
work in front of the media.
75


There are those who may not agree with the forced media
presence of the traditional celebrity. Yet, in the face of our
current state of “Celebreality,” the line between voluntary and

68. See Warren & Brandeis, supra note 5, at 196 (stating “column upon
column is filled with idle gossip, which can only be procured by intrusion upon
the domestic circle”).
69. See Warren & Brandeis, supra note 5, at 195 (portraying “all-purpose”
public figures as those lacking any sphere of private life).
70. See Smolla, supra note 63, at 1098 (noting tendency of reality television
to dissolve the line between public and private figures).
71. See Jersey Shore, MTV.COM, archived at
http://www.webcitation.org/5xnbI30Zo (enabling visitors to watch full
episodes, access message boards, view cast photos and biographies, and
purchase merchandise).
72. See Anita L. Allen, Lying to Protect Privacy, 44 VILL. L. REV. 161, 181-82
(1999) (reasoning that “[celebrities’] lives are scrutinized too closely”).
73. See Allen, supra note 72, at 177-78 (examining how private citizens may
lie in public regarding intimate personal details because of the importance of
privacy).
74. See WILBURTA Q. LINDH et al., DELMAR’S CLINICAL MEDICAL ASSISTING 56 (4th
ed. 2010) (warning that “[s]taring is dehumanizing and is often interpreted as
an invasion of privacy”).
75. See Allen, supra note 72, at 182 (contending that politicians and public
officials “work and play before the eyes of the media”).

242 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
involuntary public figures becomes more blurred.
76
There is the
possibility that private citizens could gain the voluntary status
through their activity online.
77
Comment E to the Restatement
states that a private citizen “by engaging in public activities, or by
assuming a prominent role in institutions or activities having
general economic, cultural, social or similar public interest, or by
submitting himself or his work for public judgment” could elevate
themselves to “newsworthy” status.
78


Comment H, in a scarier revelation due to today’s current
digital state of affairs, states that these factors are determined by
“community mores.”
79
When your community is demanding
anything and everything, the last nail seems to have been
hammered in the coffin for privacy for even the private citizen
who happens to get into a public situation.
80
The invasion of
ordinary citizen privacy is not nascent but will become more
widespread.
81
This is the same reason that Oliver Sipple’s
sexuality was revealed nationally after he stopped a would-be
assassin from shooting President Gerald Ford in 1975.
82


B. The What

Within the tort of Publicity Given to Private Life, the bar
facially for publication includes offensiveness and a failure of the
information in question to be of legitimate public concern.
83
The
protection given to newsgathering is premised on the fact that if
the media is barred from getting the scoop, the public would

76. See Smolla, supra note 63, at 1098 (noting that ordinary people are
often thrust into public view by the media).
77. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1977) (inferring that
online activity confers a voluntary public figure status because it is
“submitting . . . work for public judgment” ).
78. RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1977).
79. RESTATEMENT (SECOND) OF TORTS § 652D cmt. h (1977).
80. See Smolla, supra note 63, at 1098 (indicating that the media is
intruding more often and more deeply into people’s private lives).
81. See Smolla, supra note 63, at 1097 (noting the current trend of privacy
erosion).
82. See Sipple v. Chronicle Publ’g Co., 201 Cal. Rptr. 665, 666 (Ct. App. 1984)
(chronicling the newspaper reporting on Sipple’s sexual orientation).
83. See RESTATEMENT (SECOND) OF TORTS § 652D (1977) (requiring publicized
matter to be “highly offensive to a reasonable person” and “not of legitimate
concern to the public”).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 243
suffer a disservice since such newsgathering is essential in
making judgments about people.
84
After all, in the Information
Age, isn’t privacy in conflict with the online mantra that
“information should roam free?”
85


Not when the mass media has transitioned from being a
reactionary force to what is going on to shaping what happens.
86

Although the court has expressed that they will “leave it to the
press to decide what is newsworthy and what is not,” this goes
against our personal, almost instinctual, notions, that personal
information is a type of property.
87
Eugene Volokh counters this
belief with the idea that even if you feel it is a property right or if
you call it one, it is still a speech restriction, where speech is a
right that is expressly protected by the First Amendment versus
privacy, which is hidden in the “penumbras” of the Constitution.
88

Are we just left with a framework that pits “speech” v. “privacy”?

1. That Doth Offends Me

Common definitions for what is considered “offensive”
under Section 652D includes that which “‘shocks the
conscience’,” “‘outrage[s] the community’s notions of decency,’”
and “is ‘exploitative’ rather than ‘informational or cultural.’”
89

This why under the law, even though it is frankly irritating for a

84. See Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy
Protections Against Disclosure, 53 DUKE L.J. 967, 1001-02 (2003) (analyzing
how the press is given deference in categorizing matters as public or private).
85. See Solove, supra note 84, at 973 (stating a general mantra of the online
world).
86. See Solove, supra note 84, at 1004 (pointing to the media as a guiding
force in societal norms).
87. See Jenkins v. Dell Publ’g Co., 251 F.2d 447, 451-52 (3d Cir. 1958)
(evaluating the newsworthiness of otherwise private information); see also
Geoff Dendy, Note, The Newsworthiness Defense to the Public Disclosure Tort,
85 KY. L.J. 147, 159-60 (1997) (dissecting the “leave-it-to-the-press”
approach).
88. See Eugene Volokh, Freedom of Speech and Information Privacy: The
Troubling Implications of a Right to Stop People from Speaking About You, 52
STAN. L. REV. 1049, 1063-64 (2000) (rejecting the effectiveness of labeling
speech restrictions as property rights); see also Olmstead v. United States, 277
U.S. 438, 469 (1928) (Holmes, J., concurring) (using the term “penumbra” to
describe the reach of the Fourth and Fifth Amendments).
89. Mintz, supra note 47, at 439.

244 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
celebrity like Pamela Anderson to be followed to the drugstore
on a poster board gathering trip and, frankly, of no use to the
public interest, it is not offensive, but rather seen as “daily life
matters” speech.
90


There are situations in which common sense decency is
violated.
91
Daily Times Democrat v. Graham dealt with the
original “crotch shot” case, where a newspaper photographer
took a photo of woman’s undergarments as her dress was blown
up by vents upon her exit from a carnival funhouse.
92
The court
found the Daily Times Democrat to be liable under Section 867,
93

determining that information that shows people in ridiculous,
embarrassing, or demeaning contexts without revealing any
useful new information about them is not newsworthy.
94


The “crotch shots” that take place today are not offensive
because they are embarrassing but because the subject is in a
position that, by cultural convention, is seen as ridiculous or
undignified.
95
With the proliferation of technology and the
continued exposure to photograph after photograph of such, it
does become an imminent threat that “at some unknown future
information technology might get so powerful that these values
will indeed be threatened with ‘destruction’ by such speech.”
96


2. Too Legit To Quit


90. See Volokh, supra note 88, at 1092 (coining the term “daily life matters”
and opining that it is protected by the First Amendment).
91. See William L. Prosser, Privacy, 48 CALIF. L. REV. 383, 416 (1960) (noting
that indecent photographs violate common decency).
92. See Daily Times Democrat v. Graham, 162 So. 2d 474, 476 (Ala. 1964)
(describing how the photograph was taken without the subject’s knowledge or
permission).
93. RESTATEMENT (FIRST) OF TORTS § 867 (1939). § 652D replaced § 867 in
the second restatement of torts. See RESTATEMENT (SECOND) OF TORTS § 652D
(1977).
94. See Daily Times Democrat, 162 So. 2d at 477 (questioning
newsworthiness of the photograph based on its obscenity).
95. See Volokh, supra note 88, at 1094 (portraying a scenario where a
person has an undignified picture taken while on a toilet).
96. Volokh, supra note 88, at 1112.

2011] JOURNAL OF HIGH TECHNOLOGY LAW 245
Arguing “tit-for-tort” is far too simplistic.
97
How do we
find what is of legitimate concern to the public when “everything
is hanging out; nothing is sacred; we have all gone nuts?”
98
The
distinction often hinges on the context in which the behavior
takes place.
99
“A sexual affair is normally [a] private [matter].”
100

Yet, if you take the affair and place it in a context where it
involves sexual harassment, the affair becomes simultaneously a
private matter that has gained newsworthiness.
101
The nature of
the subject matter involved in a private matter can “morph” it
into a matter of public concern.
102


Daniel Solove grapples with the public-private distinction
when it comes to newsworthiness.
103
Solove gives the example of
the public having the “right to know” where a child molester lives
versus the public having or needing the “right to know” about a
celebrity foot fetish.
104
His supposition is that the public wants to
know about the child molester and not necessarily about the foot
fetish.
105
Unfortunately, in the age of PerezHilton.com, TMZ, and
TheSuperficial.com, we want to know both and nothing is
sacred.
106
We have to embrace the reality that sources like TMZ
broke some of the major new stories of the 2009 news cycle.
107


97. See Volokh, supra note 88, at 1100-05 (indicating complexity by listing
alternative proposals for retrenching privacy).
98. Smolla, supra note 63, at 1097.
99. See Smolla, supra note 63, at 1138 (evaluating impact that the context of
the behavior has on transforming a private person’s poignantly tragic incident
into a newsworthy story).
100. Smolla, supra note 63, at 1134.
101. See Smolla, supra note 63, at 1133-34 (noting newsworthiness of sexual
harassment committed by a public official).
102. See Smolla, supra note 63, at 1134 (reiterating that Bill Clinton’s private
sexual affair with Monica Lewinsky became a matter of public concern).
103. See Solove, supra note 84, at 1000 (defining the newsworthiness test in
the context of the tort of public disclosure).
104. See Solove, supra note 84, at 1009 (revealing that information about
private figures can be more relevant than information about public figures).
105. See Solove, supra note 84, at 1009 (expounding the importance to
society of identifying a dangerous child molestor).
106. See Smolla, supra note 63, at 1097 (stressing the prevalence of
aggressive business entities distributing private information).
107. See Eric Deggans, TMZ Breaks News Michael Jackson is Dead; Does That
Also Spell the Death of Traditional Media Showbiz Coverage?, TAMPABAY.COM,
June 25, 2009, archived at http://www.webcitation.org/5wQUVCe7m
(reporting that TMZ broke the news of Michael Jackson’s death an hour before
any other news source).

246 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
Capitalism is eroding our privacy, because nobody wants to be
out-scooped.
108
This is not more evident than when you are in a
law school Information Privacy class and the self-proclaimed
privacy advocates, while chastising California’s Proposition 77
and its violation of the privacy rights of sexual offenders, are
surfing the likes of People.com.
109
This reflects the lack of
consistency in who society is willing to protect with its notions of
privacy and who it will not.
110
At times, the choice of who we are
willing to extend the veil of privacy is confusing.
111


How did the state of the law arrive here? It was partially
by the courts and partially by the public’s own making.
112
The
question of newsworthiness used to be based on whether the
legal fiction of the ordinary “reasonable person” would find the
material at issue in a case newsworthy.
113
It was much harder to
argue ten years ago that a “crotch shot” was newsworthy,
especially in view of Daily Times Democrat v. Graham.
114
If there
is even any protection in the last element in this part of Section
652D, which is doubtful for public figures, it has been further if
not completely eroded by online Celebreality.
115
Since the
market yearns for these types of details and photographs, the
public is caught in its own trap.
116
By its purchasing,

108. See Solove, supra note 84, at 1006 (observing the obligation felt by the
media to report what is in the public sphere of discussion).
109. See Dynamic Mix of Breaking News, Interactive Award Show Coverage, a
Growing Social Media Presence, and More Contribute to Record-Breaking Month
for the No. 1 Celebrity Magazine Website, TIME, Feb. 2, 2010, archived at
http://www.webcitation.org/5wQWn7MXE [hereinafter People] (quantifying
extent of People.com’s popularity).
110. See Solove, supra note 84, at 1009 (identifying maleability of a focus
upon public figure status).
111. See, e.g., State v. Rhodes, 61 N.C. 453, 459 (Phil. 1868) (holding that
domestic violence was not a significant enough crime to warrant piercing the
veil of privacy).
112. See DANIEL J. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND
PRIVACY ON THE INTERNET 114-19 (2007) (summarizing the history of
defamation law and the right of privacy).
113. See Smolla, supra note 63, at 1136 (noting the objective standard of
newsworthiness in private figure cases).
114. See Daily Times Democrat, 162 So. 2d at 476, 478 (holding that the
publication of a picture of a woman with her dress blown up by air vents
violated her right of privacy).
115. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1977) (justifying the
extensive intrusion upon right of privacy for voluntary public figures).
116. See, e.g., People, supra note 109 (demonstrating public’s desire for

2011] JOURNAL OF HIGH TECHNOLOGY LAW 247
downloading, and viewing, the public has made something
newsworthy that should not be and that was not anticipated by
the courts that crafted our current regime of protections.
117
As
long as the “reasonable person” can derive social value from a
situation, or “The Situation,” the legitimate public interest is
satisfied, regardless of the result it has upon the person now
open to public purview.
118


Critics of the current state of affairs argue that
protections, in view of the changing market, must be bolstered.
Under the current state of the tort, if you are in a public place,
you are treated as though you have impliedly consented to being
of “newsworthy” status, but some critics argue that this
determination should be a question of degree and should not
prima facie destroy the right to privacy.
119


In Virgil v. Time, Inc., the court stated: “The line is to be
drawn when the publicity ceases to be the giving of information
to which the public is entitled, and becomes a morbid and
sensational prying into private lives for its own sake, with which
a reasonable member of the public, with decent standards, would
say that he had no concern.”
120
Today’s Celebreality should be
considered “a morbid and sensational prying into private lives for
its own sake” and that this status of a piece of information is
where “the line is to be drawn.”
121


Our “prurient curiosities” are eroding our own causes of
action under Section 652, creating a situation where the “privacy
plaintiff’s take is the product of the privacy plaintiff’s make.”
122


privacy of the celebrities).
117. See THE FUTURE OF REPUTATION, supra note 112, at 123 (observing that the
current legal system is not sufficient for the remedy of invasion of
“newsworth” privacy).
118. See Sipple, 154 Cal. App. 3d at 1048 (outlining the test for
“newsworthy”). “The Situation” is one of the members of the cast of MTV’s
Jersey Shore reality show. See Jersey Shore, MTV.COM, supra note 71.
119. Mintz, supra note 47, at 440 (defining privacy by the location of facts
disclosed).
120. 527 F.2d 1122, 1129 (Cal. 1975).
121. See Emile Karafiol, The Right to Privacy and the Sidis Case, 12 GA. L. REV.
513, 525 (1978).
122. Smolla, supra note 63, at 1138; see also RESTATEMENT (SECOND) OF TORTS §

248 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
There is a danger in surfing the web for such content: there is the
distinct possibility you might drown. The reality is that the
courts cannot continue to look at the celebrity issue as black and
white as the boundaries of the definition of who qualifies as a
celebrity will continue to be pushed outward.
123
Individual users
are feeding the abuse of their own and others’ privacy.
124
As
interesting as that article on actress Lindsay Lohan may be,
society’s consumption of such media lends to its being deemed a
“matter of public interest” or subject to the protections afforded
information that is classified as “newsworthy.”
125


II. Part II: R.I.P. to the REP

As demonstrated in the case of Celebreality, context is
everything when it comes to privacy.
126
For this very reason, it is
difficult to have a bright line rule regarding the First Amendment
and privacy.
127
These decisions must necessarily be made on a
case-by-case basis as they involve considerations of what is
public and what is private.
128
Jonathan Mintz differentiates
between the “public domain” and the “private domain” with a
helpful real-world scenario.
129
Let’s say a woman decides to
disclose the fact she has had an abortion to riders on a bus.
130
If
she announces this fact upon a public bus, she has voluntary
disclosed such information into the “public domain,” even
through it is intimate and likely one of the most personal details

652D cmt. c (1977) (explaining that protection afforded is relative to the
customs of the time and place).
123. See Solove, supra note 84, at 1009-10 (arguing that boundaries need to
be determined on a case by case basis).
124. See Smolla, supra note 63, at 1098 (critiquing tabloid culture).
125. See Smolla, supra note 63, at 1098 (broadening newsworthy subjects).
126. Clifford J. Shapiro, The First Amendment and the Private Domain (1963)
(unpublished paper).
127. See Time, Inc. v. Hill, 385 U.S. 374, 391 (1967) (comparing different
possible standards for privacy invasion).
128. See id. (cautioning that different issues arise with respect to private and
public sitautions); Evans v. Evans, 76 Cal. Rptr. 3d 859, 863 (Cal. Ct. App. 2008)
(debating the balance of individual privacy versus the free speech interests in
publication).
129. See Mintz, supra note 47, at 459 (illustrating the difference between
public and private scenarios).
130. See Mintz, supra note 47, at 459 (elucidating a scenario where a woman
discloses medical information in private and public).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 249
one can reveal about themselves.
131
Yet, if we change the context
to another bus, this time a private chartered bus with family
members, and she reveals the same details, the information is
considered inviolable and secret.
132
This simple change in
context renders the information to be considered within the
“private domain,” and thus subject to greater protection in the
eyes of the law.
133
Now, let us transition from the bus to the
Internet. Do these analogies translate online?

In an attempt to adapt these Mintz analogies, is a user
entitled to the protection afforded to the private domain when
they reveal to someone intimate details through instantaneous
messaging tools such as America Online’s Instant Messenger
(“AIM”) or Google Chat (“GChat”) versus when a user posts the
same information in an open online forum? The answer to this
question may at first seem to be obvious. “GChat” would be
analogous to the private bus, and the online forum is analogous
to the public bus.
134
In the bus scenario, Mintz is focusing on the
conduct of the discloser (and potential plaintiff), and the degree
of intimacy in which the disclosure takes place.
135
As an
individual online, I may just be intending to disclose details of my
love life to one person, but with GChat especially, conservations
are “banked,” allowing Google’s possession of said conversations
and the ability to review later on what was discussed.
136

Conversations go from hearsay to “Here, see?” Adding technology
to the privacy equation makes an already complex visceral issue
of determining what is public and what is private run haywire.
137


131. See Mintz, supra note 47, at 459 (considering the disclosure of personal
information in a public forum).
132. See Mintz, supra note 47, at 459 (changing the context of the scenario
for comparison between private and public disclosure).
133. See Mintz, supra note 47, at 459 (distinguishing how the legal context
changes from a public forum to a private forum).
134. See Mintz, supra note 47, at 459 (reasoning that private conversations
are in the private domain).
135. See Mintz, supra note 47, at 460 (noting the importance of who the
speaker and listener are in determining whether the forum should be public or
private).
136. See About Gmail, GOOGLE.COM, archived at
http://www.webcitation.org/5wWRVN0jf (delineating the chat history saving
feature of Gchat).
137. See About Gmail, supra note 136 (articulating Gchat’s “off the record”
features).

250 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
Even with these emerging complexities, our existing legal
frameworks for privacy may be equipped to deal with this
scenario. Times Mirror Co. v. Superior Court holds that the
revelation of intimate matters to family or close personal friends
does not cause one to lose their privacy interest.
138
Mintz
recommends a “zone of fair intimate disclosure,” which would
still be subject to the fact-intensive challenges that normally
occur in this area of jurisprudence, but the facts of displacement
of one-on-one conversations from an offline to an online
context.
139
The same protections afforded to one-on-one
conversations in person would be afforded to one-on-one
conversations online. Part of this fact intensive challenge may
include the fact that a third-party service provider is facilitating
the conversation.

Jurisprudence in this area already demonstrates an
opinion on the state of protection afforded information that has
been “turned over” to third parties.
140
With technology in its
current state, surely there needs to be a new view of
“intimacy.”
141
Some relationships that exist within the virtual
world are more substantial and in-depth than those that exist in
the real one.
142
With changing social mores, it will be difficult for
the courts to make a decision to value one context over the other.
What then of changing the context to an online community,
where one invites friends to share in the details of their lives,
ranging from sexual orientation to after-work excursions to
political views to tawdry photographs.
143
What do we make of
the context of Facebook.com?
144


138. See Times Mirror Co. v. Superior Court, 244 Cal. Rptr. 556 (Cal. App.
1988) (indicating that seeking solace from friends and family by disclosing
information did not render her name public information).
139. See Mintz, supra note 47, at 461 (analyzing the decisions of the court in
the terms of private domain).
140. See Mintz, supra note 47, at 438 (noting that divulging private facts to a
third person results in some degree of privacy loss).
141. See Pamela Paul, Does Facebook Make Someone Social Offline?, N.Y.
TIMES, Jan. 28, 2011, archived at http://www.webcitation.org/5wWTtBFzO
(observing studies that show Facebook creates new means of expressing
intimacy).
142. See Paul, supra note 141 (asserting that Facebook makes users more
sociable).
143. See Paul, supra note 141 (demonstrating how men and women use

2011] JOURNAL OF HIGH TECHNOLOGY LAW 251

A. Keeping Your Friends Close and Strangers Even Closer

Over four hundred million people have opted themselves
into a community where less than half of them have ever taken
the extra precautions available to preserve their privacy.
145
This
community is Facebook.com, the ever-expanding social
networking site that is currently used by 80-90% of
undergraduate college students.
146


Researchers at the University of North Carolina have
found that while youth users understand the privacy threats that
exist when one discloses information online, these users
“misjudge the extent, activity, and accessibility of their social
networks.”
147
Strater and Richter found that users have an
“imagined audience” when they create their profiles on social
networking sites like Facebook.
148
Some imagine this audience to
be cohorts at school they wish to impress with their online
presence.
149
Others imagine this audience to be people who
might seriously evaluate who they are as a result of the contents
of their profile.
150
Does this mean that the expectation of privacy
on a site like Facebook is “unreasonable” in view of the fact that
its users underutilize the protections available and are

Facebook).
144. See Welcome to Facebook.com, FACEBOOK.COM, archived at
http://www.webcitation.org/5tQbzMQHp (welcoming new and existing users
to Facebook).
145. See Katherine Strater & Heather Richter, Examining Privacy and
Disclosure in a Social Networking Community, UNIV. OF NORTH CAROLINA, Jul. 18,
2007, archived at http://www.webcitation.org/5x5PzcOS2 (examining
student disclosures on social networking sites versus their privacy initiatives).
146. Facebook.com Press Room, FACEBOOK.COM, Jul. 17, 2009, archived at
http://www.webcitation.org/600HgsPyk (showing statistics for Facebook
users and advertisers).
147. See Strater & Richter, supra note 145, at 158 (evaluating user awareness
of privacy threats on Facebook).
148. See Strater & Richter, supra note 145, at 158 (explaining the findings of
a study conducted on a group of young Facebook users).
149. See Strater & Richter, supra note 145, at 157 (analyzing the motives of
young Facebook users).
150. See Diana Smith, Getting Caught in the Social Web, N.C. LAW. WKLY., Sept.
28, 2009 (addressing employment concerns of paralegals who use Facebook).

252 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
misinformed about the amount of privacy they enjoy in this
community?

One of the main issues with the idea of a “reasonable
expectation of privacy” online is that there are two co-existing
“legal” regimes at this point: the corporate “Privacy Policy”
schemes and the breadth of privacy jurisprudence that we
operate under. Current jurisprudence has not dealt with the
transfer of relationships from the offline to the online context, so
the only guidance that exists for users consists of privacy policies
and other measures in place on various sites meant to protect
privacy.
151
Yet, because there are no judge and jury in the
corporate setting besides the Board of Directors, shareholders,
and often, the ill-informed consumer/user, users are bound by
their use or misuse of particular online applications.
152
Whether
they are fully aware or not, they could be dutifully eroding their
privacy rights.
153


Yet, expectations of prima facie privacy change depending
on the social networking site. Unlike MySpace.com, where users
create their own profile names, potentially masking their
identity, Facebook’s basic operation is premised upon the
revelation of a person’s name and a network.
154
After its initial
launch and in its original form, Facebook was solely open to
college and university students who could provide a college email
address.
155
Facebook openly connects “participant profiles to

151. See Controlling How You Share, FACEBOOK.COM, Feb. 15, 2011, archived at
http://www.webcitation.org/5tQc5RvR4 (explaining privacy policies and
controls on Facebook as set by Facebook).
152. See Terms of Use, FACEBOOK.COM, Feb. 15, 2011, archived at
http://www.webcitation.org/5xQe7hHKq (listing the terms that users will be
bound by through account use and agreement).
153. See Strater & Richter, supra note 145, at 158 (contending that the
complexity of Facebook’s user interface leads to inappropriate privacy
settings).
154. Compare How Can I Add My Real Name to My MySpace Profile So My
Friends Can Find Me?, MYSPACE.COM, Oct. 10, 2010, archived at
http://www.webcitation.org/5wZDAdc8k (implying that a user must take
extra steps to add their real name to their profile), with Browse By Name,
FACEBOOK.COM, archived at http://www.webcitation.org/5wZDwL7AU
(providing a public listing of users’ real names).
155. See Facebook Expands to Include Work Networks, FACEBOOK.COM, May 3,
2006, archived at http://www.webcitation.org/600HbWxUp

2011] JOURNAL OF HIGH TECHNOLOGY LAW 253
their public identities.”
156
Despite the link, users do not reveal in
the visceral world many of the things they reveal in the virtual
world.
157
In the visceral world when users do reveal these
details, it is to a limited amount of people at a limited time.
158

With a site like Facebook, one is disclosing the same information
twenty-four hours a day to numerous other individuals.
159

Following this logic, should, and does, your online activity on a
site like Facebook erode your reasonable expectation of privacy
not only online but offline?
160


1. Trail Blazing

Warren and Brandeis’ “Right to Privacy” did not come out
of thin air: it was prompted by press coverage of the wedding of
Warren’s daughter.
161
It was not the result of public behavior,
and the article was in defense of a zone that today is recognized
as “intimate.”
162
Although online activity in social networking
communities takes place from one’s personal computer, it is not
occurring in the same type of intimate zone that was of concern
in the Justices’ famous article.
163
The entry of information takes
place in a private place, but once a user hits the “return” key, it is
unveiled online to the broader worldwide community.
164


(announcing the changeover from requiring a school email address to a
general email address).
156. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy
in Online Social Networks, WPES ’05: PROC. 2005 ACM WORKSHOP ON PRIVACY
ELECTRONIC SOC’Y, 71, 72 (2005).
157. See Gross & Acquisti, supra note 156, at 73 (comparing the sharing of
personal information online and offline).
158. See Gross & Acquisti, supra note 156, at 73 (implying that an offline
social network is narrow with strong ties).
159. See Gross & Acquisti, supra note 156, at 73 (characterizing online social
networks as being wide with weak ties).
160. See Gross & Acquisti, supra note 156, at 74 (cautioning that privacy
expectations of students within a college that use their school’s online network
may be disconnected from reality).
161. See JEFFREY ROSEN, THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN
AMERICA 43 (2000) (examining how Warren and Brandeis identified a legal
principle that could constrain the press from publishing private information).
162. See ROSEN, supra note 161 (stating that the publication of truthful but
intimate details can cause injury).
163. See ROSEN, supra note 161 (identifying private personal details as
intimate).
164. See Gross & Acquisti, supra note 156, at 73 (noting the vastness of the
online social network).

254 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2

In United States v. Miller,
165
the Supreme Court decided
that information that has been turned over to a third party, in
that particular case, bank records, was not subject to Fourth
Amendment protection.
166
The Supreme Court found that the
plaintiff did not have a legitimate expectation of privacy in
information he turned over to third parties, focusing on the
transactional nature of the materials in the case.
167
Information
we leave online leaves “electronic footprints.”
168
With features
like Facebook’s News Feed, this becomes enhanced, as every
friend you add, element of your profile you alter, and action you
take within the Facebook community gets reported out to the
rest of the people you call your “friends.”
169
While for some, the
people they are “friends” with on Facebook reflects their friend
selection offline, for others, they have expanded their zone of
disclosure to individuals who we previously would consider to be
strangers.
170
Once information gets turned over to third parties,
specifically in the instance of a platform provider like Facebook,
all bets are off in the realm of privacy jurisprudence, since this
information has now both been exposed to the third party
provider and those who you deem your “friends” online.
171


Sometimes, it is difficult to discern which areas are public
versus private spaces upon these websites since they offer the
illusion of privacy.
172
It may not be fair to say that users throw

165. 425 U.S. 435, 442 (1976).
166. See id. at 442 (finding no legitimate expectation of privacy in bank
records).
167. See id. at 443.
168. See ROSEN, supra note 161, at 7 (observing that website visitors leave
behind information that can be traced).
169. See Caroline McCarthy, Facebook’s Zuckerberg: ‘We Really Messed This
One Up’, CNET.COM, Sep. 8, 2006, archived at
http://www.webcitation.org/5wZU6PWR9 (chronicling the early negative
response to the news feed feature).
170. See Gross & Acquisti, supra note 156, at 73 (suggesting that online
friends can be different than real friends).
171. See Miller, 425 U.S. at 443 (emphasizing the Court’s repeated holding
that the Fourth Amendment does not apply when information is revealed to a
third party).
172. See Susan B. Barnes, A Privacy Paradox: Social Networking in the United
States, 11 FIRST MONDAY (2006), archived at
http://www.webcitation.org/5wZVxvZod (commenting on the privacy

2011] JOURNAL OF HIGH TECHNOLOGY LAW 255
away their reasonable expectation of privacy merely by signing
up for a profile.
173
According to Jerry Kang, this is the very
reason why a new “reasonable expectation of privacy” has to be
created for the evolving “techno-cultural regime.”
174
Kang
addressed online transactions in the late nineties, when privacy
in e-commerce transactions was a concern amongst many
privacy advocates (and still is today).
175
In view of the mass
proliferation of Facebook and other social networking
technologies, “[t]o retard this information processing juggernaut
in the name of privacy seems antitechnology, even
antiprogress.”
176


2. Imaginations Run Wild

Even with all the information that one provides within a
profile, such profiles are still an incomplete picture of how a
particular person operates in the visceral world. According to
Rosen, while there is “liberty” in truthful disclosure and
information, there is a certain captivation that can be had from
misinformation.
177
“Privacy protects us from being misdefined
and judged out of context in a world of short attention spans, a
world in which information can easily be confused with
knowledge.”
178
With the use of social networking sites, people do
not understand the major transaction costs they face in placing
their profile information online: they are providing a virtual
dossier upon which strangers, friends, lovers, professors, and
employers can “judge” who they are.
179
These virtual dossiers

difficulties inherent in social networking).
173. See Barnes, supra note 172 (surmising that one loses their privacy
rights when joining a social networking site).
174. See Jerry Kang, Information Privacy in Cyberspace Transactions, 50 STAN.
L. REV. 1193, 1284 (1998) (connecting a Fourth Amendment expectation of
privacy to evolving technology and culture).
175. See Kang, supra note 174, at 1287 (proposing legislation for cyberspace
privacy).
176. See Kang, supra note 174, at 1285.
177. See ROSEN, supra note 161, at 8-9 (elucidating how people disclose
information to each other and form relationships).
178. ROSEN, supra note 161, at 8.
179. See Steve Lohr, How Privacy Vanishes Online, N.Y. TIMES, Mar. 16, 2010,
archived at http://www.webcitation.org/5wZsuCeAX (describing how small
bits of social network site data can be reassembled into a social signature).

256 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
are in high demand in an information society, as they allow other
people to make “educated” judgments, operating off the
assumption that a greater quantity of information will yield more
truth.
180

The problem is that while some people are being honest in their
presentation of self online, others are portraying themselves
online in a way that is not necessarily an accurate reflection of
who they are in the visceral world since it is much simpler to do
so in an online context.
181
What some people put online might
not even be true and could still be considered their private
information.
182
Deciphering a hard and fast rule of who should
be protected and what types of information should be subject to a
potential “reasonable expectation of privacy” online is difficult.
183

Operating under the assumption that “Facebook” is an intimate
zone, some people try to share their life with others.
184
Other
people, as they likely do in the visceral world to the general
public, keep their reputations free of dirt and grime.
185
For the
honest user who assumes correctly that sharing things with a
small group is intimate in the visceral world, should they be
entitled to the same protection online?
186
In an online, user-
generated context, you cannot confirm facts or identity.
187
This is

180. See Solove, supra note 84, at 1033 (postulating that more information
leads to better accuracy in judging people); see also RICHARD A. POSNER, THE
ECONOMICS OF JUSTICE 232 (1983) (stressing how prying into others’ personal
information allows for a more accurate picture of the person).
181. See Stephanie Rosenbloom, Putting Your Best Cyberface Forward, N.Y.
TIMES, Jan. 3, 2008, archived at http://www.webcitation.org/5wZvipJhn
(stressing an obvious fact that users of online sites lie about their age, weight
and attractiveness).
182. See Solove, supra note 84, at 1000 (distinguishing between public and
private information using the newsworthiness test).
183. See Patricia Sanchez Abril, Private Ordering: A Contractual Approach to
Online Interpersonal Privacy, 45 WAKE FOREST L. REV. 689 (2010) (concluding
that courts have avoided acknowledging a reasonable expectation of privacy
online).
184. See Noam Cohen, Married or Single: Is That in the Facebook Sense?, N.Y.
TIMES, Feb. 4, 2011, archived at http://www.webcitation.org/5wb8W8nyp
(reporting the tendency of Facebook users to post information about their love
lives to the online community).
185. See Solove, supra note 84, at 1038 (noting that the repression of private
aims is necessary in public roles in order to meet others’ expectations).
186. See Abril, supra note 183, at 699 (differentiating online social groups
from close-knit, visceral, social groups).
187. See Solove, supra note 84, at 1037 (reasoning why people conceal their
identities online); see also WESTIN, supra note 22, at 33 (analyzing underlying

2011] JOURNAL OF HIGH TECHNOLOGY LAW 257
true although most users of a social networking site like
Facebook, especially those who signed up prior to it being open
to the general public, assumed their decision to share such
information was in the context of a more closed, private online
community.
188
Thus, these users tried to decrease their
transaction costs by selecting the more private option in the
online social networking marketplace.
189
Even on the login page
to Facebook, it used to read, “Use privacy settings to control who
sees your info.”
190
Facebook has developed a corporate “legal”
regime that has created an expectation of some threshold of
privacy that according to current privacy doctrine is juxtaposed
with what could happen to a user’s information in the real
world.
191


Certain schools of economists assume that the market
corrects for these imbalances.
192
Bearing in mind the “educative”
function that gossip has been argued to have, the market is
unlikely to correct for the misperceptions of a job candidate that

psychological motivations behind an individual’s preservation of distinct
private and public identities).
188. See Janet Kornblum, Facebook Will Soon Be Available to Everyone, USA
TODAY, Sept. 11, 2006, archived at http://www.webcitation.org/5wbDk2iXC
(reporting Facebook’s acceptance of members in the general public after years
of serving only college students).
189. See Woyswer007, Make Facebook More Private, SHETOLDME.COM, Jan. 8,
2011, archived at http://www.webcitation.org/5wbFFnjPn (providing
instructions on how to increase privacy settings on Facebook account).
190. Gillian Reagan, The Evolution of Facebook’s Mission Statement, THE NEW
YORK OBSERVER, July 13, 2009, archived at
http://www.webcitation.org/5wbGKGQCz (chronicling the various mission
statements that have appeared on Facebook’s login page over time).
191. See Matthew J. Hodge, The Fourth Amendment and Privacy Issues on the
“New” Internet: Facebook.com and MySpace.com, 31 S. ILL. U. L.J. 95, 118 (2006)
(quoting a Facebook policy which indicated that the company would protect
users’ privacy rights). Facebook’s changes to its privacy policy continue to
spark debate. See John. D. Sutter, Some Quitting Facebook as Privacy Concerns
Escalate, CNN TECH, May 13, 2010, archived at
http://www.webcitation.org/5wbHP5ibF. Recent “democratic” attempts by
Facebook to include users in the policymaking process included the Facebook
Site Governance Vote from April 16 to 23, 2009. See Chris Walters, You’re
Participating in the Facebook Terms of Service Vote, Right?, CONSUMERIST.COM,
Apr. 22, 2009, archived at http://www.webcitation.org/5wbHf30g5 (noting
that since this vote, Facebook has continued to take unilateral action in
creating its’ privacy policy and shaping user options).
192. See Solove, supra note 84, at 1042 (explaining Posner and Epstein’s
view of market balancing).

258 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
an employer may get from a profile meant to share someone’s
personal life.
193
In a society that purports to value honesty and
transparency, if the market is not to correct the imbalance
between the revealer and the concealer, should the law? Yet,
when the “law” of social networking sites is a corporate policy,
then the judge can oftentimes be in the form of an early twenty-
something entrepreneur who the business and legal communities
have learned in the last year “is a visionary” but “has such a lack
of experience in the business world.”
194


B. The Misadventures of Mark Zuckerberg

In time long, long ago and in a land far, far away in
Internet terms, a preeminent scholar argued that privacy
restrictions were necessary to keep the Internet attractive to
consumers.
195
While adults over the age of thirty seem to be
concerned with online privacy, teenagers and youth who use
these privacy-infringing technologies generally do not appear to
be as concerned.
196
Youth users of social networking sites,
although unlikely to take pro-active approaches to safeguarding
their privacy, are certain to retroactively employ strategies to
defend their privacy, displaying reactive anger when they feel
their privacy has been impinged.
197
A young man named Mark
Zuckerberg, the CEO and Founder of Facebook, has discovered
this twice in the last three years.
198


193. See Solove, supra note 84, at 1034 (arguing that there is a high social
value of gossip).
194. See Mike Shields, Industry to Zuckerberg: Apology (Mostly) Accepted,
ADWEEK, Dec. 10, 2007, archived at http://www.webcitation.org/5wgywhWkU
(noting strengths and weaknesses of Mark Zuckerberg).
195. See Volokh, supra note 88, at 1118 (arguing for privacy restriction
online).
196. See Barnes, supra note 172 (noting different generational approaches to
privacy); ABBY KIESA, ALEXANDER P. ORLOWSKI, PETER LEVINE, DEBORAH BOTH, EMILY
HOBAN KIRBY, MARK HUGO LOPEZ & KARLO BARRIOS MARCELO, “MILLENNIALS TALK
POLITICS: A STUDY OF COLLEGE STUDENT POLITICAL ENGAGEMENT” 4 (Ctr. for Info. &
Research on Civic Learning and Engagement 2007) (explaining that the
Millennial generation is anyone born after 1985).
197. See Danah Boyd & Eszter Hargittai, Facebook Privacy Settings: Who
Cares?¸ 15 FIRST MONDAY 8 (2010) (outlining response to Facebook privacy
concerns: “Quit Facebook Day” and developing alternative sites).
198. See, e.g., Mark Zuckerberg, WIKIPEDIA, archived at
http://www.webcitation.org/5wh2CTKmm (documenting Zuckerberg’s trials

2011] JOURNAL OF HIGH TECHNOLOGY LAW 259

1. That “Icky” Feeling

Facebook’s first privacy debacle emerged in September
2006 with the advent of its “News Feed” feature.
199
The feature
was meant to update a user’s Facebook “friends” on their
comings and goings within the Facebook site.
200
Admittedly,
some aspects of this feature are enjoyable, especially when it
alerts this user to the “Groups” her friends have joined on
Facebook.
201
Through a seven degrees connection, I joined a
group entitled, “Save Henry the Pom.” Henry is really a
Pomeranian whose owner has created a profile for him, but the
group is hilarious, and the dog has such a personality. If not for
News Feed, I never would have located this quirky little group.

The News Feed problem emerged because users did not
want their friends to know their Facebook business or share their
interests, but because Facebook never asked users if they did.
202

An “opt out” feature was made available for the application, but
users were not warned that the feature had been launched.
203

The launch of News Feeds was the first major issue Facebook
would experience by not treading lightly in their decision to have
an “opt in” versus an “opt out” system.
204
The backlash was
huge.
205
Within days, users had formed a Students Against
Facebook News Feeds group.
206


and tribulations with Facebook); Boyd & Hargittai, supra note 197 (explaining
concerns over Facebook privacy settings).
199. See Boyd & Hargittai, supra note 197 (pointing to deployment of “News
Feed” as creating privacy concerns).
200. See Boyd & Hargittai, supra note 197 (indicating the goal of “News Feed”
feature).
201. See Help Center: Groups, FACEBOOK.COM, archived at
http://www.webcitation.org/5xQdd0KFP (explaining the “Groups” features).
202. See Social Networking Privacy, ELEC. PRIVACY INFO. CTR., archived at
http://www.webcitation.org/5wh3e8Pr6 (explaining users’ desire to be
warned about new features).
203. See Social Networking Privacy, supra note 202 (acknowledging that
privacy features should have been included right away).
204. See Social Networking Privacy, supra note 202 (detailing Facebook
features introduced via an opt out system).
205. See Social Networking Privacy, supra note 202 (noting that “[t]housands
of users voiced their complaints about the News Feed.”).
206. See Social Networking Privacy, supra note 202 (excerpting a claim from

260 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2

Didn’t these users put all this information online in the
first place for all of their friends to see?
207
Does it matter that it
now alerts their friends when things are edited on their
profiles?
208
That information was placed online in the first place,
but there was still this perception that Danah Boyd describes as
“security through obscurity.”
209
With the News Feeds feature,
social faux pas and online Facebook decisions become more
visible.
210
If a user broke up with his or her significant other
before News Feeds, another user would have had to click into
their profile to get this information.
211
With News Feeds, a friend
user’s home page will declare, “John Doe is now single,”
indicating to anyone John has “friended” that his relationship has
come to an end.
212
In an allusion to individual sociological frames
of reference, Boyd points out that News Feeds are what Malcolm
Gladwell would term as “sticky” in The Tipping Point.
213
You may
never notice John broke up with Jane on his profile.
214
But when
you see the little red broken heart next to the tag line, “John Doe
is now single,” you are more likely than not going to take
notice.
215


the Students Against Facebook News Feed’s mission statement regarding
Facebook’s overreaching).
207. See Social Networking Privacy, supra note 202 (noting that users had
already exposed their information by posting it on their pages).
208. See Social Networking Privacy, supra note 202 (questioning Facebook’s
decision to automatically publish personal information to all of a user’s
“friends”).
209. Danah Boyd, Facebook’s Privacy Trainwreck: Exposure, Invasion, and
Social Convergence, 14 CONVERGENCE: INT’L J. RES. INTO NEW MEDIA TECH. 13, 15
(2008), archived at http://www.webcitation.org/6007HNt5O.

210. See Boyd, supra note 209, at 15 (giving examples of users’ ill-considered
Facebook usage affecting their real relationships because of News Feeds).
211. See Boyd, supra note 209, at 13 (stating that News Feeds made
relationship status changes more obvious).
212. See Boyd, supra note 209, at 13 (observing that “a [relationship] state
change is propagated to everyone’s News Feed”).
213. See, e.g., MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN
MAKE A BIG DIFFERENCE 25 (2000) (proffering that small changes in how one
presents and organizes information can have a large impact—the “Stickiness
Factor”); Boyd, supra note 209, at 17 (stating that “[n]ews Feeds makes
Facebook sticky”).
214. See Boyd, supra note 209, at 17 (characterizing those who notice small
changes on other users’ profiles as stalkers or anthropologists).
215. See Boyd, supra note 209, at 17 (noting the sudden visibility of profile
changes due to the News Feed).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 261


2. Not on My Account

Despite the above discussion of the self-served dossiers
Facebook users provide and our society’s attraction to “prurience
and peccadilloes,” there has still been a line drawn in the sand
when it comes to the right to use one’s information for another’s
gain.
216
In the visceral world, this line in the sand is playing itself
out due to activity that began in the virtual world: a photo posted
on Flickr.
217


Alison Chang, at a church car wash, posed for a picture for
her youth group leader, Justin Wong.
218
Justin Wong, wanting to
share his photos with another online community, Flickr, posted
the photos online.
219
Virgin Mobile saw the photo of Alice and
decided to take it from Flickr, using it in a print advertising
campaign on billboards throughout Australia, since the photos
are licensed by Creative Commons in a fashion that allows the
user to grant permission for others to use the photo.
220
Alison
finds out her photo has been used in an ad with a slogan
emblazoned over her image that implied that Alison was the kind
of pen pal “loser” one could dump if they subscribed to Virgin
Mobile cellular service.
221
Specifically, the ad encouraged
consumers to “DUMP YOUR PEN FRIEND.”
222
Alison did not
consent to her photo being posted in the first place.
223
She was a

216. See Solove, supra note 84, at 1007 (streamlining the argument for
pluralism in the media).
217. See Flickr Home Page, FLICKR.COM, archived at
http://www.webcitation.org/5wk7epQjO (welcoming users to share and store
their photographs on the website).
218. See Chang v. Virgin Mobile USA, LLC., No. 3:07CV1767, 2009 U.S. Dist.
LEXIS 3051, at *4 (N.D. Tex. Oct. 19, 2007) (stating the facts and background of
the case); see also Dallas Family Sues Virgin Mobile For Illegal Use of Teen in
Advertising Campaign, FOXNEWS.COM, Sept. 21, 2007, archived at
http://www.webcitation.org/5wk9GJORh [hereinafter Dallas Family Sues]
(providing additional background for the lawsuit).
219. See Chang, 2009 U.S. Dist. LEXIS 3051, at *4.
220. See id.
221. See id. (detailing Virgin’s use of photo in advertisement).
222. Id.
223. See Chang, 2009 U.S. Dist. LEXIS 3051, at *1 (laying out the various
bases for the lawsuit). Chang sued Virgin USA for invasion of privacy, libel,

262 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
victim of the reality of the digital world, that what goes online
does not necessarily stay there.
224


In Chang v. Virgin Mobile USA, LLC, Alison Chang brought
suit against Virgin for misappropriation of Alison Chang’s
likeness without her consent for their own use and benefit.
225

This sounds ripe for a right of publicity claim, except for the
added complication that the Flickr photograph, taken by Justin
Wong, Alison’s church youth leader, was posted under a Creative
Commons “Attribution” license.
226
The license allows anyone to
use the photos posted for any purposes, including commercial
purposes, as long as the posting user gets credit.
227
Under said
license, there is an option when agreeing to the license that asks,
“Do you want to allow commercial uses?”
228
Although this case
was dismissed for a lack of jurisdiction, it is representative of
how small and transparent the online world can be: it was
another Flickr user, sesh00, who alerted Alison to her photo’s
use.
229


Hal Varian in the Economic Aspects of Personal Privacy
discusses the transaction costs we as users experience in the
sphere of online retail.
230
Similar costs emerge with social

breach of contract, and copyright infringement. Id.
224. See Gross & Acquisti, supra note 156, at 74 (describing the Pentagon’s
use of Facebook information to compile databases).
225. See Complaint at 18, Chang v. Virgin Mobile USA, LLC., No. 3:07CV1767,
2009 U.S. Dist. LEXIS 3051(N.D. Tex. Oct. 19, 2007) (providing a legal basis for
the invasion of privacy claim).
226. See id. at *4 (conveying that the Creative Commons Attribution license
provides for the most unrestricted use).
227. See Creative Commons Legal Code, Attribution 2.0,
CREATIVECOMMONS.ORG, Feb. 24, 2011, archived at
http://www.webcitation.org/5wkFSs1qa (providing the license in question in
the case).
228. See Noam Cohen, Use My Photo? Not Without Permission, N.Y. TIMES, Oct.
1, 2007, archived at http://www.webcitation.org/5wkGQEkUa (showing
previous Stanford Law School Professor Lawrence Lessig’s opinion on the
Creative Commons license).
229. See Brenton Cleeland, Dump Your Pen Friend, FLICKR.COM, Feb. 24, 2011,
archived at http://www.webcitation.org/5xroWpdmH (posting a picture of
the advertisement Virgin Mobile Australia ran at a bus stop).
230. See Hal R. Varian, Economic Aspects of Personal Privacy, UC BERKELEY,
Dec. 6, 1996, archived at http://www.webcitation.org/5wkIDMfCo
(highlighting the costs associated with searching).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 263
networking sites, as marketers target teen consumers, and can
use such information provided on a user’s virtual dossier to
target that user.
231
The potential licensing and contractual
problems emerges in the use by Facebook of the personal
information you provide on your profile: You technically have
agreed to its use by Facebook when you “opted in” to
Facebook.
232
Well, so Mark Zuckerberg thought.

In November 2007, Mark Zuckerberg announced the
launch of new feature on Facebook, called “Facebook Ads” (also
known as “Beacon”).
233
Beacon was meant to be multi-faceted:
“Advertisers can create branded pages, run targeted
advertisements, and have access to intelligence and analytics
pertaining to the site’s more than 50 million users.”
234

Essentially, like Alison Chang, companies, with the Beacon
technology, could utilize a user’s “face” to endorse their
products.
235
Almost immediately, the reaction was fierce.
236
The
New York Times covered the reaction in an article “Facebook’s
Next Privacy Problem.”
237
A CNET headline read, “Facebook
Decides to Bastardize Its Community.”
238
Weeks later after a
protest organized by MoveOn.org on the site, on December 5,
2007, Zuckerberg backed off his ad scheme, announcing that

231. See Barnes, supra note 172, at 5 (analyzing the privacy concerns of
social networking sites).
232. See Terms of Use, FACEBOOK.COM, Feb. 24, 2011, archived at
http://www.webcitation.org/5xQe7hHKq.
233. See Louise Story, Facebook is Marketing Your Brand Preferences (With
Your Permission), N.Y. TIMES, Nov. 7, 2007, archived at
http://www.webcitation.org/5wkV1Jcbq (breaking news of Facebook’s
inclusion of commercial messages on users’ personal pages).
234. Dave Rosenberg, Facebook Decides to Bastardize its Community, CNET
NEWS, Nov. 6, 2007, archived at http://www.webcitation.org/5wkVeTPD5.
235. See Story, supra note 233 (balancing the benefits to advertisers against
individuals’ right to control their association with products).
236. See, e.g., Caroline McCarthy, Rough Seas Nearly Sink Facebook’s Beacon,
CNET NEWS, Nov. 30, 2007, archived at
http://www.webcitation.org/5wkX445UW (emphasizing the rapid response
and vocal outrage to the Beacon service announcement).
237. See Saul Hansell, Facebook’s Next Privacy Problem, N.Y. TIMES, Nov. 7,
2007, archived at http://www.webcitation.org/5wkY9A0FR (characterizing
Zuckerberg’s reaction to negative user feedback).
238. Rosenberg, supra note 234.

264 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
participation in the scheme would be “opt in” versus its initial
“opt out” structure.
239


Why would users, who do not even take the precautions
necessary on Facebook in the first place, get so angry about the
launch of Beacon? The Economist aptly describes the concern:
“It’s creepy.”
240
Beyond being creepy, the Beacon program
violates the same notion of self-ownership that Virgin Mobile
offended when it took the picture of Alison Chang from Flickr and
used it in an Australian advertising campaign.
241
It is one thing
for a youth group leader to share with others the fun he had with
his youth group.
242
Chang likely did not have a problem with that
use.
243
It is another issue to have these same pictures utilized for
someone else’s benefit at your own cost.
244


On Facebook, Beacon is to the benefit of companies like
Coca-Cola, Conde Nast, and Blockbuster, who are utilizing users
to hawk their products.
245
In an information society, there is a
greater demand for demographic and psychographic data.
246
It

239. See Saul Hansell, Zuckerberg Apologizes, Allows Facebook Users to Evade
Beacon, N.Y. TIMES, Dec. 5, 2007, archived at
http://www.webcitation.org/5wkZCcK30 (realizing the backlash, Zuckerberg
apologizes and makes Beacon an opt-out system).
240. See Will Facebook, MySpace and Other Social-Networking Sites Transform
Advertising, THE ECONOMIST, Nov. 8, 2007, archived at
http://www.webcitation.org/5wkaBIAgx (elucidating the history of online
advertising).
241. See Cleeland, supra note 229 (exclaiming in a post “hey that’s me!” and
signifying outrage at having her image being used without permission).
242. See Chang, 2009 U.S. Dist. LEXIS 3051, at *4 (noting that Chang’s
photograph was taken by a youth group leader and posted on Flickr).
243. See id. (inferring that Chang would not have objected to her counselor
posting the photograph on Flickr).
244. See Complaint at 14, Chang v. Virgin Mobile USA, LLC., No. 3:07CV1767,
2009 U.S. Dist. LEXIS 3051 (N.D. Tex. Oct. 19, 2007) (focusing on the
humiliation and embarrassment that Alison experienced as a result of Virgin’s
unauthorized use of her photo).
245. See Daniel J. Solove, The New Facebook Ads - Starring You: Another
Privacy Debacle?, CONCURRING OPINIONS, Nov. 8, 2007, archived at
http://www.webcitation.org/5wlkqpqYb (describing the enthusiasm of
advertisers in setting up Facebook profiles to gather information about users’
market preferences).
246. See Rohan Samarajiva, Interactivity as Though Privacy Mattered, in
TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE 277, 283 (Philip E. Agre & Marc
Rotenberg eds., 1997) (establishing that business interests’ need for
personalized data conflicts with individual privacy rights).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 265
has long been obvious that Facebook provides a wealth of
information to corporations and marketing firms looking to
figure out the youth market.
247
When one releases information
into any online forum, especially one like Facebook, the platform
is set up so that a user is sharing information with a micro-
audience.
248
The insertion of corporate interests in the scheme
and the tagging of your purchases and consumer behavior open
you up to a meta-audience that you never intended to be subject
to in the first place.
249
As a user you may want to share your love
of 1970’s television programming like “Three’s Company” to your
friends or a perhaps join a group on Facebook entitled “I Love the
1970’s.”
250
You did not mean for Time Warner to get access to
that data to send you Facebook messages about DVD special
editions on those same shows.
251


What is worse is that Facebook Ads was launched in the
wake of a Federal Trade Commission hearing regarding concerns
about advertisers having too much access to information about
people’s online activities.
252
As Daniel Solove points out, the ads
may potentially implicate another familiar section from the
Restatement (Second) of Torts § 652C, which states: “One who
appropriates to his own use or benefit the name or likeness of
another is subject to liability to the other for invasion of his
privacy.”
253
Virgin Mobile is already familiar with this section:

247. See Solove, supra note 245 (detailing the wealth of information that
Facebook provides corporations through its massive user base and
communicative features).
248. See Lars Trodson, The Birth of the Micro-Audience, ROUNDTABLE PICTURES,
Feb. 21, 2011, archived at http://www.webcitation.org/5wln3M2tt
(announcing preference among younger generations for directing messages
towards a specific group of people as opposed to general blogging).
249. See Samarajiva, supra note 246, at 285 (characterizing the relationship
between corporate interests and the public in interactive media systems).
250. See Jennifer Van Grove, New Facebook Groups Designed to Change the
Way You Use Facebook, MASHABLE.COM, Oct. 6, 2010, archived at
http://www.webcitation.org/5wloTjOpe (announcing the availability of
Facebook groups – a shared space where members can engage in communal
activities).
251. See Story, supra note 233.
252. See Solove, supra note 245 (noting Federal Trade Commission hearing
in Washington about online privacy and customized ads). Information
regarding Federal Trade Commission hearings and testimony is available at
http://www.ftc.gov/opa/2007/10/dnctestimony.shtm.
253. See Solove, supra note 245, quoting RESTATEMENT (SECOND) OF TORTS §

266 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
Facebook may have saved itself with Zuckerberg’s change of tune
on the “opt out” versus “opt in” scheme.
254
But nonetheless,
referring back to themes of self-ownership of personal
information, as Bobby, a commenter to Solove’s Concurring
Opinions piece put it: “‘FaceCrook’... [is] pimping us big time.”
255


3. A Facebook Democracy...or Dictatorship?

2009 was a quite a year for Facebook in terms of
incompatible responses to its treatment of user privacy.
256
From
giving users the impression they could vote to set the privacy
rules for Facebook’s Terms of Use to Mark Zuckerberg declaring
that privacy was essentially “dead,” Facebook further presents
the case of how corporations justify giving users less privacy
since there are no legal protections in place.
257


Facebook decided in February 2009 to turn its platform
into a democracy for its users to decide what the privacy policies
for the site should be.
258
Before the vote, users were given the
chance to leave comments on Facebook’s governance policy.
259

Between the dates of April 16 to 23, 2009, users were given the
chance to participate in the Facebook democracy, voting on
proposed changes to the privacy policy.
260
It was within this

652C (1977).
254. See Hansell, supra note 239 (noting that Facebook now allows users to
disable Beacon entirely).
255. See Solove, supra note 245.
256. See Kevin Bankston, Facebook’s New Privacy Changes: The Good, The
Bad, and The Ugly, ELECTRONIC FRONTIER FOUNDATION, Dec. 9, 2009, archived at
http://www.webcitation.org/5wlrf4jsk (commenting on Facebook’s privacy
changes throughout the latter months of 2009).
257. See Bobbie Johnson, Privacy No Longer a Social Norm, Says Facebook
Founder, THE GUARDIAN, Jan. 11, 2010, archived at
http://www.webcitation.org/5wlsTngbp (reporting Mark Zuckerberg’s
comments about the state of privacy in the wake of social networking’s
emergence).
258. See Rafe Needleman, Facebook Opens Up to User Debate and Vote, CNET
NEWS, Feb. 26, 2009, archived at http://www.webcitation.org/5wluKj2lS
(clarifying community-driven process for developing Facebook agreements
unveiled in February of 2009).
259. See Needleman, supra note 258 (inviting authors of the most insightful
comments on the new governance policy to serve on a “user council”).
260. See Ben Parr, The Facebook Democracy: How Will It Affect You,
MASHABLE.COM, Apr. 5, 2009, http://www.webcitation.org/5wluuFkTy (noting

2011] JOURNAL OF HIGH TECHNOLOGY LAW 267
limited window that nearly 300 million people were supposed to
get the opportunity to voice their opinion on Facebook’s privacy
regime.
261
Yet, the rules set in place for this democratic process
were pretty unrealistic: “This vote will be binding if 30% or more
of all active users as of February 26, 2009, the day that the vote
was announced, vote.”
262
Besides this 30% rule, which means
that probably around 100 million of the 300 million registered
users would have had to vote, a user only got the chance to vote if
they had logged into their account within the 30 days prior to the
February 26
th
date this election was announced.
263
Further,
Facebook stated that votes on proposed changes would happen
on any change in the future “if at least 7,000 people submit
comments.”
264
The complexity of the rules combined with the
legalese used in the policies did not make the voting process
accessible in the sense that it should have been.
265


The new privacy settings that Facebook has released in
the wake of this vote bypass its purported democratic process
entirely. By June 2009, Facebook had already begun creeping
towards forcing its users to go totally public by making status
messages, photos and videos visible to any Facebook user, not
just one’s approved friend list.
266
In December 2009, all users

a democratic approach to revising the Facebook governance documents).
261. See Parr, supra note 260 (commenting on the effect that Facebook has
on its users by allowing them to vote on its privacy policy documents).
262. Facebook Site Governance Vote on Facebook, FACEBOOK.COM archived at
http://www.webcitation.org/5wrqy8eVO; cited in Richie Escovedo, Facebook
Rocks the (Site Governance) Vote, NEXT COMMUNICATIONS, Apr. 17, 2009, archived
at http://www.webcitation.org/5wrrPw7nc.
263. See Escovedo, supra note 262 (quoting Facebook voting rule).
264. Escovedo, supra note 262.
265. See Escovedo, supra note 262 (stressing that a thirty percent or more
vote is needed for the vote to have effect); see also Lidiju Davis, Facebook’s Site
Governmance Vote: A Massive Con?, READ WRITE WEB, Apr. 19, 2009, archived at
http://www.webcitation.org/5wrurgTGz (arguing that Facebook’s voting
process would have no effect on Facebook’s privacy rules), quoting Privacy
International Says Facebook Vote Policy is a “Massive Confidence Trick, PRIVACY
INTERNATIONAL, Apr. 16, 2009, archived at
http://www.webcitation.org/5wrvQ7STV.
266. See Marshall Kirkpatrick, The Day Facebook Changed: Messages to
Become Public by Default, N.Y. TIMES, June 24, 2009, archived at
http://www.webcitation.org/5wrvbdJFy (commenting on the public default
rule Facebook implemented).

268 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
went public on Facebook, whether or not they wanted to.
267

Overnight, a user’s full name, profile picture, gender, current city,
networks, pages they were a “Fan” of, and the user’s friend’s list
went public.
268
The change in Facebook’s privacy settings to
public profiles as the default status reflects another unilateral
decision made for Facebook users about their privacy.
269
When
the change went into effect, the change was presented to users in
such a way that by pressing the “Accept” button warning about
the policy changes, a user’s information went public
automatically.
270


Mark Zuckerberg assumes that all users felt the same way
that he feels about his personal privacy: “I set most of my content
on my personal Facebook page to be open so people could see it.
I set some of my content to be more private, but I didn’t see a
need to limit visibility of pics with my friends, family or my teddy
bear.”
271
Additionally, Zuckerberg, the public face of the world’s
largest social networking site, unilaterally declared that the age
of privacy was over when interviewed by the editor of Silicon
Valley’s premiere tech blog TechCrunch, Michael Arrington, in
January 2010.
272
Zuckerberg claimed that, “We view it as our
role in the system to constantly be innovating and be updating
what our system is to reflect what the current social norms
are.”
273
By asserting that Facebook is merely taking society’s lead

267. See Bankston, supra note 256 (observing the effect of Facebook’s new
privacy rules on users’ privacy).
268. See Bankston, supra note 256 (criticizing Facebook’s new rule to protect
privacy and explaining that it actually reduces user control over privacy).
269. See Bankston, supra note 256 (clarifying how Facebook’s privacy setting
decision made profiles more public than before).
270. See Guest Blogger, Facebook Has You By The Social Balls,
ARTICSTARTUP.COM, Feb. 12, 2010, archived at
http://www.webcitation.org/5ws4I0fxx (exposing the tactics of Facebook’s
new privacy acceptance method as unsavory).
271. See Marshall Kirkpatrick, Zuckerberg Changes His Own Privacy Settings,
READWRITEWEB, Dec. 11, 2009, available at
http://www.webcitation.org/5xrtQMveJ (commenting on how his profile is
left mostly all open).
272. See Ian Paul, Facebook CEO Challenges the Social Norm of Privacy, PC
WORLD, Jan. 11, 2010, archived at http://www.webcitation.org/5ws6nbgGH
(outlining Zuckerberg’s comments on privacy and Facebooks history of
privacy snafus).
273. See Paul, supra note 272.

2011] JOURNAL OF HIGH TECHNOLOGY LAW 269
on user privacy, Facebook leaves us in dangerous legal territory
in an area of the law that seems to be defined by norms and
societal values alone.

C. Are You In?

In reference back to the question posed at the beginning of
this section, in a society that purports to value honesty and
transparency, if the market is not to correct the imbalance
between the revealer and the concealer, should the law? This
feeds into the primary question to be discussed in this section:
Have we compromised our right to privacy with online activity,
narrowing the spheres in which there is a “reasonable
expectation of privacy?” If the courts are to take a strict
interpretation of the 1970’s decision and apply it Facebook,
considering the information that users have turned over to the
third party of Facebook to be “transactional” in nature, then those
who value their individual privacy maybe best to stay out of
online communities like Facebook.

The rule set forth in United States v. Miller
274
does not
allow people as users of the Internet to “comfortably negotiate all
contexts.”
275
Whereas it is clear from Miller, and from
jurisprudence relating to information collected through Internet
Service Providers (“ISPs”), that such information is not subject to
a reasonable expectation of privacy, how do we negotiate the fact
that Facebook is perceived to be the same as private visceral
space by many of its users?
276
This perception is facilitated by
the fact that in its privacy options, users can select to show

274. 425 U.S. 435, 445 (1976) (holding that there is no expectation of privacy
in publicly available information).
275. Boyd, supra note 209, at 14-15.
276. See Katz, 389 U.S. at 360 (noting that “conversations in the open would
not be protected against being overheard, for the expectation of privacy under
the circumstances would be unreasonable”); In re DoubleClick Inc. Privacy
Litigation, 154 F. Supp. 2d 497, 506 (S.D.N.Y. 2001) (noting that DoubleClick
disclosed that it collected personal information about users, belying user
privacy expectation ); United States v. Maxwell, 45 M.J. 406, 419 (1996)
(distinguishing how “. . . messages sent to the public at large in the ‘chat room’
or e-mail that is ‘forwarded’ from correspondent to correspondent lose any
semblance of privacy”).

270 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
individuals a “Limited Profile,” selecting from a list of options of
which information one wants to reveal and which information
they choose not to.
277
This option in itself creates the illusion of a
“reasonable expectation of privacy” when one chooses to use
these options.

People are angry because Facebook is able to change the
rules of the game whenever they want with no consequences,
and, literally, that’s not what its users signed up for. People used
their real identities on Facebook thinking they had some
modicum of privacy, and now their information is indexed and
could be found in a Google search.
278
With the corporate creation
of a “reasonable expectation of privacy,” the corporate violation
of this same “reasonable expectation of privacy,” and the court’s
definitive view of a “reasonable expectation of privacy,” it is
difficult, if not impossible, to apply the “one size fits all” approach
to online communication.
279


III. Part III: The Naked Truth

The consequence of technological change, information
availability, is not the only thing feeding the new “right to know”
phenomenon.
280
It may be easy to blame someone like a Perez
Hilton or a Mark Zuckerberg for providing forums for celebrity
and private actors to expose themselves, but both of these sites
were created in response to a cultural shift in America.
281


277. See Help Center, What is a Limited Profile, FACEBOOK.COM, available at
http://www.webcitation.org/5x5stgAzs (explaining that a limited profile
allows users to control what information is shared).
278. See Pete Cashmore, Facebook Profiles Will Appear in Google Results Next
Month, MASHABLE.COM, Sep. 5, 2007, archived at
http://www.webcitation.org/5wsFdMp4A (summarizing how Google will be
able to search Facebook profiles).
279. See Hodge, supra note 191, at 120-21 (acknowledging the difficulty in
determining when Facebook users have a reasonable expectation of privacy).
280. See Friedman, supra note 17, at 330 (examining the consequences of
people feeling they have a right to know everything about public figures).
281. See Hodge, supra note 191, at 120 (placing the growth of Facebook
within the context of the Internet’s societal changes); Jeremy Adam Smith,
How We’re Financing Meaningful Journalism, KNIGHTGARAGE.STANFORD.EDU, Mar.
1, 2011, archived at http://www.webcitation.org/5wubelFaG (implying that
the online media convergence gave rise to celebrity gossip sites). Perez Hilton
is the founder and primary blogger on PerezHilton.com. See Sheila Marikar,

2011] JOURNAL OF HIGH TECHNOLOGY LAW 271
Americans seem not to mind, or perhaps are not aware, that the
user who seeks information about other individuals engages in
an involuntary form of information reciprocity: they like are
giving away details of their own lives as well.
282


This is a dream for the likes of privacy theorists like David
Brin. In his 1998 book, The Transparent Society, Brin argues that
“we... all benefit [from]... two-way information flows.”
283
Working
off of the economic principle of information asymmetry, Brin
would argue that by our activity online in places like Facebook,
coupled with our demand for transparency on behalf of public
figures and private participants of “Celebreality,” we are arriving
at a state where, “We’ll all stumble a lot less if we can see where
we are going.”
284
This works theoretically if the individual and
the media outlet are all operating on a level playing field.
285
They
are not.
286
Brin may advance a theory of reciprocal transparency,
and in an ideal honest world this may work.
287
“Mankind are
greater gainers by suffering each other to live as seems good to
themselves, than by compelling each to live as seems good to the
rest.”
288
Despite its openness online, society still passes

Perez Hilton’s Guide to Getting Famous, No Talent Required, ABCNEWS.COM, Jan.
6, 2009, archived at http://www.webcitation.org/5wuZIBfeS. He is “one of the
most notorious celebrity bloggers.” Maarten van Sprang, Comparing Dirt,
MASTERS OF MEDIA, Nov. 6, 2007, archived at
http://www.webcitation.org/5wuaOIHSy. He refers to himself as a “queen” of
media and labels his site, “Hollywood’s Most Hated Website.” PEREZ HILTON:
Hollywood’s Most Hated Website, WOLFMANPRODUCTIONS.COM, archived at
http://www.webcitation.org/5wub4zWnp.
282. See Emily Price, 100M Facebook Profiles Now Available for Download, PC
WORLD, Jul. 28, 2010, archived at http://www.webcitation.org/5wudtAqw7
(detailing the harvesting of Facebook personal information from profiles).
283. DAVID BRIN, THE TRANSPARENT SOCIETY 22 (1998).
284. BRIN, supra note 283, at 26.
285. See BRIN, supra note 283, at 330-31 (opining that professionals cannot
dominate if information transparency is to flourish).
286. See BRIN, supra note 283, at 330-31 (delineating the difference between
media professionals and amateurs).
287. See BRIN, supra note 283, at 81 (detailing the concept of reciprocal
transparency).
288. John Stuart Mill, On Liberty, in CLASSICS OF MORAL AND POLITICAL THEORY
936, 942 (Michael L. Morgan ed., 2005).

272 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
judgment on the foibles of others.
289
The naked truth is that
individuals end up being rendered transparent.
290


Why does this behavior matter? Does a user’s posting or a
profile on Facebook, or their intrigue with celebrity gossip sites,
really have an impact on the state of the law? Simply stated: it
does, and it will. First, it reflects the notion that society is
becoming more willing to surrender the privacy of individuals
who ordinarily would not be considered public figures.
291
While
some people are thrusting themselves into the public light
voluntarily, others are not, but these involuntary celebrities’ own
expectation of privacy is eroded due to the activity of others.
292

The courts cannot help but look outward when it comes to the
protections afforded by the privacy torts, as they turn on
elements such as the whether information is of “legitimate
concern to the public” and “newsworthiness,” which are defined
by societal norms.
293
When it is becoming the “norm” for users to
seek “crotch shots” and get lurid details, torts like the tort of
Publicity Given to Private Life are not dying: they are dead.
294


A. A Congressional Resurrection

With the advent of new ways to invade the privacy of a
whole new category of people, the private person turned
“celebrity,” amongst other potential privacy plaintiffs, more than
a revival is needed for the privacy torts.


289. See Dallas Family Sues, supra note 218 (detailing how having a picture
posted online can lead to being ridiculed by one’s peers).
290. See Dallas Family Sues, supra note 218 (highlighting the negative
consequences of posting personal information online).
291. See Solove, supra note 84 at 1004 (cautioning that the evolving
expectations of privacy are due to the media’s reporting on private matters).
292. See RESTATEMENT (SECOND) OF TORTS, § 652D cmt. f (1977) (commenting
that people can become celebrities involuntarily through media’s reporting of
newsworthy conduct).
293. See Virgil v. Time, Inc., 527 F.2d 1122, 1131 (9th Cir. 1975) (holding that
where reasonable minds disagree, newsworthiness is a question of fact).
294. See Google Insights for Search, GOOGLE.COM, archived at
http://www.webcitation.org/5xmFOn5k3 (comparing search growth of
“crotch shot” relative to news and current events).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 273
First, it is essential that it be made clear, statutorily, who
qualifies as a voluntary public figure. While the courts found
Oliver Sipple was someone who had placed themselves in the
public light, and under the jurisprudence and traditional concept
of “newsworthiness,” perhaps rightfully so, today some people
who are engaging in wholly unremarkable conduct are subject to
the same designation.
295
The distinction between voluntary and
involuntary public figure must be drawn.

Second, what constitutes a “public activity” must be
redefined, especially in view of the proliferation of online media.
Revisiting Comment E to Restatement Section 652D, those who
engage in “public activities” or are participating in that which
qualifies as “submitting himself or his work for public judgment”
may also lose the privacy protections afforded by the tort.
296
If
this applies to online activity such as a Facebook profile—which
essentially operates as a “brag page” of one’s activities, work, and
degrees—this activity is indeed public and is submitting oneself
to the judgment of others within that particular online space.
297

Most users of Facebook have likely not taken this privacy loss
under consideration when they create their profiles.
298


Returning to Comment H, the factors in Restatement
Section 652D are determined by “community mores.”
299
The
online community is not sequestered or localized: it literally

295. See Sipple, 201 Cal. Rptr. at 669 (finding that Sipple had placed himself
in the public light through his own conduct); Noam Cohen, Use My Photo? Not
Without Permission, N.Y. TIMES, Oct. 1, 2007, archived at
http://www.webcitation.org/5wkGQEkUa (goofing around in a photograph
taken at a local carwash lead to Alison Chang’s image being posted throughout
Australia on billboards).
296. See RESTATEMENT (SECOND) OF TORTS, § 652D cmt. e (1977) (defining
voluntary public figure and noting that he cannot seek redress when he
receives publicity sought).
297. See Strater and Richter, supra note 145 (reporting findings that sixty-
seven percent of Facebook users responded within all personal fields).
298. See Strater and Richter, supra note 145 (highlighting lack of
consideration among users regarding privacy implications when disclosing
information online).
299. See RESTATEMENT (SECOND) OF TORTS, § 652D cmt. h (1977) (stressing the
importance of examining “customs and conventions of the community” in
determining what is a matter of legitimate public interest).

274 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
encompasses a worldwide network of websites and users.
300
Is
an individual’s “community” determined by that person’s
community in the real world, such as the city of San Francisco, or
the State of California, or is it determined by their online
community, like Facebook?
301
It is near impossible for a court to
determine the values of the “community” that constitutes
Facebook with its diverse worldwide membership.
302

One of the reasons for the ardent adherence to the
“newsworthiness” factor by the courts has been the idea of the
responsible nature of journalists, wanting to get nothing but the
facts and truth to citizens and other consumers of the news.
303

Today, it is questionable if it is possible to make these same
blanket assumptions for media, treating all media sources the
same.
304


1. Online Messaging Applications

Unlike telephone conversations, the surveillance of which
receives Fourth Amendment protection under Katz v. United
States, electronic communications have yet to see this same types
of protection under the law.
305
A glimmer of hope for Fourth
Amendment protection for electronic communications was
briefly found in the 2007 case Warshak v. United States, which

300. See Paul Gibler, Virtual Communities Make Online Connections, WTN
NEWS, Dec. 4, 2006, archived at http://www.webcitation.org/5wwPpmnLh
(recognizing that the Internet provides worldwide communication capabilities
to its users).
301. See David R. Millen, John F. Patterson & Cory Costanzo, The Dynamics of
Social Interaction in a Geography-based Online Community, IBM.COM, archived
at http://www.webcitation.org/5wwRIwsbB (distinguishing online
communities from geographic-based communities).
302. See H. Brian Holland, In Defense of Online Intermediary Immunity:
Facilitating Communities of Modified Exceptionalism, 56 KAN. L. REV. 369, 385
(2008) (hypothesizing that online values are imposed by legal systems and
commercial entities rather than emerging from the commons).
303. See RESTATEMENT (SECOND) OF TORTS § 652D cmt. g (1977) (indicating that
publishers and broadcasters are afforded the leniency to define “news”).
304. See Kendyl Salcito, Online Journalism Ethics: New Media Trends,
JOURNALISM ETHICS FOR THE GLOBAL CITIZEN, archived at
http://www.webcitation.org/5wwUDtO5P (listing negative effects of
journalism’s transition to online media including the pressure to lower ethical
standards).
305. Katz, 389 U.S. at 353 (holding that electronic surveillance of telephone
booth constitutes a search and seizure under the Fourth Amendment).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 275
considered the question of whether individuals had a reasonable
expectation of privacy in the contents of emails stored by an
ISP.
306
The Sixth Circuit affirmed a preliminary injunction,
holding that the Fourth Amendment precluded the government
from obtaining ex parte access to an email stored long-term on
the servers of an ISPs without a demonstration of probable
cause.
307
The statute in question, Section 2703(d) ofthe Stored
Communications Act, was held unconstitutional to the extent that
it would allow law enforcement officials to get the contents of an
email from an ISP without demonstrating probable cause and
giving notice to the person who sent the emails.
308


Although a Sixth Circuit en banc panel vacated the
decision and remanded it back to the trial court for dismissal in
2008, the panel did note that a Fourth Amendment constitutional
issue relating to online messaging would turn on “the
expectations of privacy that computer users have in their emails-
an inquiry that may well shift over time, that assuredly shifts
from Internet-service agreement to Internet-service agreement
and that requires considerable knowledge about ever-evolving
technologies.”
309


Warshak would have been the first case to set forth
protections for communications that happen over third-party
platforms and communication clients online.
310
The core ideas
set forth regarding email privacy hopefully reflect an emerging
tendency to afford privacy protection to not only the content of
email communications, but also the contents of other online
communications, such as those that occur in online conversations

306. 490 F.3d 455, 473 (6th Cir. 2007) (recognizing a privacy interest in
content of an e-mail).
307. Id. at 482 (balancing public interest in privacy and governmental
interest in intrusion while justifying the preliminary injunction against
government).
308. Id. (requiring a fact-specific showing of probable cause to seize e-mails
under the Stored Communications Act); Stored Communications Act, 18 U.S.C.
§ 2703(d) (2010).
309. Warshak v. United States, 532 F.3d 521, 526-27 (6th Cir. 2008).
310. See Susan Freiwald and Patricia L. Bellia, The Fourth Amendment Status
of Stored E-Mail: The Law Professors' Brief in Warshak v. United States, 41 U.S.F.
L. REV. 559, 560 (2007) (arguing that Warshak had a reasonable expectation of
privacy for emails stored with service providers).

276 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
through instant messaging applications such as Google Chat,
Microsoft’s MSN Messenger, and America Online’s Instant
Messenger.
311
These do not yet receive protection, even though
they are becoming as much of commonly used medium as email
and are applications that “bank” all previous conversations
(unbeknownst to many users).
312


2. Social Networking Services

Despite the promise of Warshak, there are not laws or
precedent protecting other types of disclosures online, even
though they are arguably another form of “content” being shared
online.
313
The concept of a “zone of fair intimate disclosure” is
nonexistent in the online world.
314
Facebook is emerging as not
only a violator of privacy through its own policy choices, but
inadvertently through the utilities that is provides for user to trip
up their privacy rights.
315


Many of our laws are fashioned to protect people who
cannot, or do not know how, to protect themselves.
316
For those
who do not realize they are pushing themselves into a public light
which sacrifices their privacy interests, Jonathan Mintz’s “zone of
fair intimate disclosure” operates as a standard which can be
adopted to protect such persons.
317
This zone, which could take
into account those who use social networking sites, could be

311. See Warshak, 532 F.3d at 527 (noting that every evolving technology
requires “a comprehensive understanding of technological facts”).
312. See id. (explaining how service providers use saved information to
target consumers); Chat History, GOOGLE, archived at
http://www.webcitation.org/5x2GNuVeV (outlining Google Chat’s terms of
use and storage).
313. See Warshak, 532 F.3d at 526-27 (arguing that the field of electronic
content is more expansive than simply email and should be protected).
314. See Mintz, supra note 47, at 460-61 (suggesting that intimate disclosure
requires a reasonable expectation of privacy).
315. See Boyd & Hargittai, supra note 197 (pointing to log-in prompt which
led to many users inadvertently accepting minimal privacy settings).
316. See Dayle D. Deardurff, Representing the Interests of the Abused and
Neglected Child: The Guardian Ad Litem and Access to Confidential Information,
11 U. DAYTON L. REV. 649, 650-51 (characterizing the guardian at litem as a
protector of those who cannot protect themselves).
317. See Mintz, supra note 47, at 460-61 (advocating for adoption of “zone”
to determine the scope of the private domain that the statement was made in).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 277
determined on a case-by-case basis, using a fact intensive
challenge, considering primarily whether the media source’s act
constitutes a morbid, sensational prying into one’s private life,
focusing on the depth of the intrusion into ostensibly private
affairs.
318
In the online context, it must not only be remembered
that the law is forced to deal with not only non-traditional
plaintiffs, but non-traditional media sources, such as bloggers
and citizen journalists, who arguably would be entitled to the
same protections as a large on or offline media source.
319


Remedying privacy problems on a social networking
service like Facebook is admittedly difficult.
320
Although the
information placed on Facebook is voluntarily placed online, this
content should still be protected from audiences whom the user
did not intend to see the information.
321
In the case of a
voluntary disclosure situation, Congress should build a
framework that considers the intent of the user and courts
should turn to the intent of the user asking: 1) Who was the
intended audience and 2) Were the persons to whom it was
disclosed part of this intended audience?

In addition to this intent consideration, it is imperative for
Congress to place upon social networking services an obligation
to give proper notice to users. This is most important not in the
voluntary decision to place information in one’s profile, but the
uninformed decision that a user makes when adding Facebook

318. See Mintz, The Remains of Privacy’s Disclosure Tort, supra note 47, at
460-61 (explaining why court’s fact-finding process will be efficient in
determining if there was disclosure of privacy).
319. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784
(1985) (Brennan, J., dissenting) (observing that six members of the Supreme
Court agree that “in the context of defamation law, the rights of the
institutional media are not greater and no less than those enjoyed by other
individuals or organizations engaged in the same activities.”)
320. See Boyd & Hargittai, supra note 197 (recognizing facebook users’
difficulty and lack of confidence in ability to change privacy settings). This
analysis did not include review of the social networking/microblogging
platform Twitter.com. See id. The platform’s nascence, and the recent
explosion of its’ use since February 2009, leaves many open questions as to its’
impact upon privacy and transparency. See id.
321. See Bankston, supra note 256 (highlighting the fact that certain
information is “publicly available information” despite users’ other heightened
security settings).

278 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XI: No. 2
Applications, like the popular, but now defunct, “Scrabulous,” to
their profile.
322
Many users are unaware that when they accept
an application, the developer of that application has access to all
the information in their profile.
323
This allows a person to make
an educated judgment as to whether or not they wish to
compromise their privacy in this manner.
324


This type of regulation allows users online to make the
same decisions about their privacy that they make in real space.
In the visceral world, people are aware when they are in a public
place or when, and to whom, they are revealing information.
325

The same type of protection should be afforded in virtual space.
With proper notice, a user can be held to a standard where they
“knew or should have known” that their privacy was being
compromised.
326
Borrowing from Jerry Kang’s approach to e-
commerce transactions, application developers would further be
limited to the information that is “functionally necessary” for the
application’s use.
327


IV. Conclusion: No Such Thing as a Free Lunch

“Privacy is not a free lunch.”
328
Ben Parr, the moderator of
the Students Against Facebook News Feeds group, found this out
the hard way, when his life was turned upside down as he
became the “face” of liberty for Facebook users who valued

322. See Emily Steel & Geoffrey A. Fowler, Facebook in Privacy Breach, WALL
ST. J., Oct. 18, 2010, archived at http://www.webcitation.org/5x2MkMtzK
(noting that applications sometimes gain access to private information).
323. See Steel & Fowler, supra note 322 (explaining that applications have
access to Facebook ID numbers which reveal all public information).
324. See Steel & Fowler, supra note 322 (summarizing Facebook’s recent
attempt to provide users with more control over what information is shared
via applications).
325. See Mintz, The Remains of Privacy’s Disclosure Tort, supra note 47, at 459
(observing that when people make statements in public they know the
information is in the public domain).
326. See Warshak, 532 F.3d at 526 (arguing that having privacy notices
reduces a person’s need for privacy protection).
327. See Kang, supra note 174, at 1271-72 (arguing that in online
transactions only information that is “functionally necessary” should be used).
328. Jeffrey Reiman, Driving to the Panopticon: A Philosophical Exploration of
the Risks to Privacy Posed By The Information Technology of the Future, in
PRIVACIES: PHILOSOPHICAL EVALUATIONS 194, 197 (Beate Rössler ed., 2004).

2011] JOURNAL OF HIGH TECHNOLOGY LAW 279
privacy. His own defense of privacy threw him into Celebreality,
and much like the other instances that have been discussed, his
efforts to defend this value eroded his claim to it. Parr simply
had one wish: “My goal is to slowly return to normality, to a time
when I didn’t get called out of a room by CBS, to a time when
Time Magazine correspondents did not ask for interviews, to a
time when I did not have fan clubs, and to a time where I was not
demonized because of Facebook.”
329
In a world where even
defenders of privacy are victimized by Celebreality, what are we
to make of Warren and Brandeis’ time-honored value?

Our demands in this information hungry society are in a
state of great conflict. In a world where Ben Parr, Pamela
Andersen, and OJ Simpson are all to be treated the same, who is
still entitled to privacy? Elli Langford, a student interviewed at
Auburn University in Alabama, makes the most insightful point of
all: “I mean, every other celebrity couple is letting movie cameras
into their houses. And you’ve got shows like The Hills and Laguna
Beach (both on MTV) where they’re in high school, but they’re
letting cameras follow them around and putting their lives onto
TV.”
330
What we have in these situations is false transparency,
the impact of which ends up in an increase in the demand for
authentic transparency from private actors.

“It may dawn on us too late that privacy should have been
saved along the way.”
331
A little over ten years later, this
statement has the disquieting feel of a biblical revelation. It is too
easy for consumers and users to get lost in the glitz and glamour
of celebrity existence, and the lure of increasing their social
prowess. Demanding the “right to know” is a scary proposition;
you cannot be halfway naked in the privacy game. It’s all or
nothing.


329. Boyd, supra note 209 .
330. Janet Kornblum, Online Privacy? For Young People. That’s Old-School,
USA TODAY, Oct. 22, 2007, archived at
http://www.webcitation.org/5x2PQMrwX.
331. Kang, supra note 174, at 1286.